Jackson v. Puget Sound Lumber Co.

CHIPMAN, C. This action was for money had and received. Defendants denied all indebtedness, and set up a counterclaim alleging that plaintiff was indebted to defendants for goods, wares and merchandise. When the case came on for trial the court made the following consent order: “ . . . . That this action be, and it is hereby, transferred to Stuart S. Wright, Esq., court commissioner of this court, for an accounting; said court commissioner to report back to this court the evidence taken, and the balance found due on said accounting.” The parties appeared before the commissioner, and introduced evidence; all objections thereto, of which there were several, being reserved and not passed upon by him. After the evidence was concluded and submitted, and before his decision or report, he tendered his resignation as court commissioner, which was accepted. Some time thereafter he filed his findings of fact and conclusions of law, and found a balance due plaintiff from defendants of $1,300, with interest and costs. Upon the filing of the report and findings of the commissioner, and the same day, the court ordered judgment entered “in accordance with the findings of the referee” (sic); and thereafter, without notice to defendants, the clerk entered judgment against them for $1,603 and costs. Defendants in due time filed objections to the report on the grounds: (1) Insufficiency of the evidence; (2) that at the time the report and findings were filed the commissioner had ceased to be such officer. And defendants further “excepted to certain errors of law occurring at the trial before said commissioner, and excepted to, as shown by the record of the proceedings had and testimony taken before said commissioner, transcript of which was also filed by said commissioner at the time of filing said report with the clerk.” Defendants also moved the court to vacate and set aside the report and the judgment for various reasons, one of which was that the commissioner, being a judicial officer and having resigned his office, had no authority to take any steps in the matter subsequent thereto. In the opinion filed by the court it was held that the order of reference was to Wright as a referee, and not as court [968]commissioner, and therefore it was immaterial whether he resigned his office of court commissioner or not. The court held that the referee went beyond his instructions in filing “findings and conclusions of law,” as he was only directed “to find the amount due on said accounting”; and, as the judgment was based on these findings and conclusions, the court set it aside, and held that he would treat the findings as part of the report, and part of the direction “to 'find the balance due,” and as to all other matters in the findings he would disregard them. Later on, plaintiff’s attorney gave notice that he would present to the court, “for his signature, findings of fact in the above-entitled action, copy of which, is hereto annexed, and ask for judgment accordingly. ” The matter came on for hearing at that time, and the court adopted the proposed findings and conclusions of law, and entered judgment for plaintiff for $1,300, the amount found by the commissioner or referee to be due. The findings follow those of the commissioner, adding one covering the issue presented by the defendants’ counterclaim.