Babcock v. Ormsby
| Decision Date | 31 August 1904 |
| Citation | 100 N.W. 759,18 S.D. 358 |
| Parties | BABCOCK v. ORMSBY et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Grant County.
Action by Howard Babcock against A. Scott Ormsby and the Ormsby Land & Mortgage Company. Judgment for plaintiff. Defendants appeal. Reversed.
Charles M. Stevens, for appellants.
L. H Bentley and Howard Babcock, for respondent.
On this appeal from an order overruling a motion for a new trial in an action to enforce the specific performance of a contract to convey real property two questions of practice require attention. The cause was sent to a referee for trial of all the issues, and, his report being in all things accepted and adopted by the court, pursuant to the stipulation of counsel for both parties, it is urged that appellants, by reason of such stipulation, are not entitled to a review of any question presented by their assignments of error. For practically every purpose of the trial, a referee appointed under our statute possesses all the powers of the court, and his report stands as a decision of the cause; but the court is the only tribunal having power to pass upon a motion for a new trial, and the right to have alleged errors considered at the hearing of such motion is not foreclosed by a stipulation that the report of the referee "be in all things accepted and adopted by the court." While the nonacceptance of the report is equivalent to the granting of a new trial, such relief may be obtained upon motion after the report has been accepted either by stipulation or otherwise, and the action of the trial court in granting or refusing a new trial is reviewable on appeal.
As employed in the stipulation of counsel, though not found in the statute relating to references, the term "adopted" has the same significance as the word "accepted," and the acceptance of the report of a referee makes it the decision of the court, and the foundation upon which a motion for a new trial may be predicated. If the report is accepted by the consent of counsel, the right to question its authenticity upon the settlement of a bill of exceptions is waived; but, if properly excepted to, alleged errors contained in such record may be insisted upon at the hearing of the motion for a new trial. The authority given by the referee to "decide any question which arises upon the trial, sign a report, or settle a case" in no manner relieves the trial court of the statutory duty of settling the bill of exceptions into which the report of the referee may be incorporated, and there is no merit in the contention of counsel for respondent that there is no bill of exceptions in this case for the reason that the same was settled by the court, and not by the referee. The court being without power to change or modify anything done by the referee, his report is accepted as a matter of course, provided such referee was regularly appointed, and the steps taken by and before him are in substantial compliance with the statute. Geddis v Folliett (S. D.) 94 N.W. 431; Neeley v. Roberts (S D.) 95 N.W. 921.
On the merits it is urged that no valid contract ever existed between the parties, that the trial court erred in refusing to suppress the deposition of a witness and in allowing respondent to amend his complaint during the progress of the trial. Notice was given in the usual form, and at the proper time, that the depositions of A. Scott Ormsby, R. Ever Ormsby, C. C. Mueller, W. J. Bowden, C. F. Bliven, "and others" would be taken at Emmetsburg, Iowa, but the notice did not contain the name of W. Dick Peddie, whose deposition, with the persons above mentioned, was taken over the objection that his name did not appear in the notice, but counsel for appellant took part in the taking of such deposition and cross-examined the witness. Although we have no statute expressly requiring the notice to state the names of the witnesses to be examined the statute pertaining to depositions provides that sufficient time must be given to enable the adverse party to reach the designated place and have one full day for preparation, exclusive of Sundays and the day of service. Section 515, Rev. Code Civ. Proc. Unless the notice contains the names, there is no way by which opposing counsel can ascertain what witnesses are to be sworn, and he would be greatly embarrassed, if not wholly unable, to make proper preparation for the examination. It is clearly within the spirit of the statute and entirely consistent with fairness to require the party who desires to take depositions to disclose in his notice the names of all the witnesses who will be sworn at the time and place mentioned. However, if the notice is not sufficient to authorize the taking of the deposition of a witness called, the party against whom it is to be used should refuse to take part in his examination, and at...
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