Wichita Natural Gas Co. v. Vermilion
| Citation | 297 F. 783 |
| Decision Date | 27 March 1924 |
| Docket Number | 6368. |
| Parties | WICHITA NATURAL GAS CO. v. VERMILION et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Rehearing Denied May 21, 1924.
Fred Robertson, of Kansas City, Kan., and H. O. Caster, of Bartlesville, Okl. (R. J. Higgins, of Kansas City, Kan., on the brief), for plaintiff in error.
J. D Houston, of Wichita, Kan., for defendants in error.
Before LEWIS, Circuit Judge, and SYMES and PHILLIPS, District Judges.
Defendants in error, plaintiffs below, sued Wichita Natural Gas Company plaintiff in error, defendant below, in assumpsit on quantum meruit for services rendered as attorneys and counsellors at law. The answer admitted that defendant employed plaintiffs to render the services sued for, but alleged that two payments which it made and which were given credit on account by plaintiffs in their complaint, were in full settlement and satisfaction. There was written waiver of jury trial and written stipulation that the issues presented by the pleadings be referred to a referee to be appointed by the court, who should take and report the evidence, make findings of fact, conclusions of law and his recommendation thereon, and report same to the court. An order of appointment was made as stipulated. The referee took the evidence and reported to the court his findings of fact conclusions of law and his recommendation that judgment be entered for plaintiffs in an amount stated as the balance due. The defendant then moved that certain findings of fact made by the referee be stricken out or set aside because contrary to the evidence, not supported by the evidence, against the weight of the evidence, and prejudicial to the defendant; and that his conclusions of law be also stricken for the same reasons, and for the further reason that they were based upon erroneous findings of fact. The motion also asked the court to allow and preserve its exception to each of those findings. The court considered the motion in the light of the evidence returned, and in a memorandum decision said:
On entry of judgment defendant sued out this writ of error and filed therewith forty-two assignments of error, which it presents here. All of these alleged errors, except six, are directed to the action of the referee while the evidence was being taken before him-- the admission and exclusion of offered proof, and the like. But none of his action in that respect was excepted to after he filed his report. It is not disclosed that his rulings, challenged by thirty-six of the assignments, were ever called to the attention of the court and its action invoked thereon. It was not asked to correct his errors in that respect, if any had been committed, by re-reference or otherwise. The exceptions which it filed to his report dealt only with the ultimate facts which he found and his conclusions of law.
It is only procedure in court, judicial action, that we can review not that of the referee. The writ was directed to the former, it could not run to the latter; hence, it brought up for review action of the court, not of the referee. Boogher v. Insurance Co., 103 U.S. 90, 26 L.Ed. 310; David Lupton's Sons v. Auto Club, 225 U.S. 489, 32 Sup.Ct. 711, 56 L.Ed. 1177, Ann. Cas. 1914A, 699; City of Cleveland v. Walsh Constr. Co. (C.C.A.) 279 F. 57, 63; Demotte v. Whybrow (C.C.A.) 263 F. 366; Philadelphia Casualty Co. v. Fechheimer, 220 F. 401, 136 C.C.A. 25, Ann. Cas. 1917D, 64; sections 649 and 700, R.S. (sections 1587 and 1668, Comp. St.). Conceding, as counsel for plaintiff in error argue,...
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