Shima v. Brown

• Decision Date: 18 January 1943
• Docket Number: No. 8301.,8301.
• Citation: 77 US App. DC 115,133 F.2d 48
• Parties: SHIMA v. BROWN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

77 US App. DC 115, 133 F.2d 48 (1943)

SHIMA v. BROWN.

No. 8301.

United States Court of Appeals for the District of Columbia.

Argued December 4, 1942.

Decided January 18, 1943.

Writ of Certiorari Denied April 12, 1943.

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.

Writ of Certiorari Denied April 12, 1943. See ___ U.S. ___, 63 S.Ct. 982, 87 L.Ed. ___.

EDGERTON, Associate Justice.

Appellee sued to recover for board, including room, which he claimed to have furnished to appellant and his wife during eight years under an agreement by appellant 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 matters 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 a master's report does not make his findings conclusive. The Rule appears to make his findings mere "evidence" unless the parties "stipulate" that they shall be final. Although Rule 53(e) provides in general terms for objections to a master's report in nonjury actions, in jury actions it provides only for "objections in point of law." We cannot say that the absence of objections amounts, in this jury action, to a stipulation that the master's findings of fact shall be final. The history of the Rule confirms this construction.³

As the question is procedural, the Rule invalidates the contrary provision of the Code.⁴ The result seems unfortunate. Since it is desirable that parties and courts be spared the burden of re-trying issues, it seems desirable to require parties who wish issues re-tried to a jury to file, within a limited time, objections to a master's findings on the same issues. But the District Court was bound by the Rule, and properly refused to "confirm" the auditor's report. Appellant was not prejudiced by the court's refusal to...