133 F.2d 48 (D.C. Cir. 1943), 8301, Shima v. Brown

Docket Nº:8301.
Citation:133 F.2d 48
Party Name:SHIMA v. BROWN.
Case Date:January 18, 1943
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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133 F.2d 48 (D.C. Cir. 1943)




No. 8301.

United States Court of Appeals, District of Columbia.

January 18, 1943

Argued Dec. 4, 1942.

Mr. John Wattawa, with whom Mr. V. O. Hill, both of Washington, D.C., was on the brief, for appellant.

Mr. Richard E. Wellford, with whom Mr. Simon R. Golibart, both of Washington, D.C., was on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate justices.

EDGERTON, Associate Justice.

Appellee sued to recover for board, including room, which ;e claimed to have furnished to appellant and his wife during eight years under an agreement by appellant

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to pay 'a fair and reasonable sum.' Appellant denied making the agreement, and the periods, if any, in which board was furnished under it were in dispute. Appellee's statement of account listed some ninety-seven items, including board for ninety months at $50 per month and seven payments, all of which were contested. When the suit was first tried the court set aside a jury verdict and, by consent of the parties, referred the case to the auditor. The auditor found that appellant owed appellee either $1,224.99 or $2,575.82 according as the court might decide a question of law, viz., whether the statute of limitations was a bar to part of the claim.

Appellant filed exceptions to the auditor's report. Appellee filed no exceptions or objections. When the case again came on for trial, appellant moved to withdraw his exceptions and confirm the auditor's report. The court denied the motion, and the case was again tried to a jury on all issues. This trial resulted in a verdict for appellee for $2,750 'without interest.' The court added interest from the time suit was filed. This appeal followed.

The District of Columbia Code provides that either party may except to any part of an auditor's 'report and account,' and that the issues 'made by said exceptions shall be tried and determined in the same manner as other issues of law or fact made by the pleadings in an action at common law, and any part of such report and account not so excepted to shall be adjudged to be conclusive between the parties * * * .' 1 But Federal Rules of Civil Procedure, Rule 53(e), 28 U.S.C.A.following section 723c, contains these provisions with regard to the findings of masters, including auditors:

'(3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. His findings upon the issues submitted to him are admissible as evidence of the matte s found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.

'(4) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered. ' 2

It seems clear that under this Rule the absence of exceptions to...

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