Caruth-Byrnes Hardware Co. v. Wolter

• Decision Date: 21 March 1887
• Parties: CARUTH-BYRNES HARDWARE CO. v. WOLTER and another.
• Court: Missouri Supreme Court

3 S.W. 865

91 Mo. 484

CARUTH-BYRNES HARDWARE CO. v. WOLTER and another.

Supreme Court of Missouri.

March 21, 1887.

1. REFERENCE — ACTION AT LAW — PRACTICE.

The court has no right to review the findings of a referee upon the evidence reported by him, and make its own findings, except in suits in equity, where the reference is made by consent of all parties, or in cases arising under Rev. St. Mo. § 3606, which authorizes the court, upon the application of either party, to refer the case where it involves an account or the settlement of an issue not arising on the pleadings. In actions at law not within section 3606 the parties are entitled to a jury as matter of right, and the findings of the referee stand as a special verdict, and must be treated as such. Reference in such cases can be had only by consent of parties, and consent to it gives the court no power to revise the issues of fact.

2. SAME — FINDINGS — FORM.

If the parties to a reference desire special findings, they should so stipulate in the order of reference. In the absence of any statute requiring specific findings, a general finding will be sufficient, unless the order of reference directs otherwise.

3. REFEREE'S FINDING STANDS AS A VERDICT — MAY BE SET ASIDE WHEN AGAINST WEIGHT OF EVIDENCE.

The rule that the trial court is invested with a large discretion in awarding a new trial, where the verdict is against the weight of the evidence, applies also to the finding of a referee in an action at law. The action of the trial court in this respect cannot be reviewed on appeal.

4. ACTION — LAW AND EQUITY — INTERPLEADER — ATTACHMENT.

A creditor levied an attachment upon the goods of his debtor, and another creditor interpleaded, claiming the goods under a chattel mortgage executed by the debtor. The attaching creditor, in answer to the interplea, set up that the mortgage was executed by the debtor to defraud and hinder his other creditors. Held, that this defense being a legal one, the issue was properly triable by a jury, and did not require a transfer of the case to equity.

Error to circuit court, Laclede county.

Hough, Overall & Judson, for defendant in error. J. P. Nixon and Smith & Krauthoff, for plaintiff in error.

BLACK, J.

This suit was commenced by attachment, and under the writ the sheriff levied upon a stock of goods, consisting of hardware, etc., as the property of the defendant C. S. Wolter. J. S. Lee, who had possession of the property at the date of the attachment, filed an interplea, claiming the property by virtue of two chattel mortgages made by Wolter to him to secure two notes of $2,000 each. To this interplea the plaintiff made answer, and the issues thus joined were by consent of the parties referred to three designated persons "to hear and determine the same, and make a finding on all of the issues involved in the case." The referees heard the evidence and made a report, which is a general finding of the issues for the interpleader, and that he is entitled to the property claimed in the interplea. They also reported all of the evidence. To the report the plaintiff filed 16 exceptions, one of which is that the referees erred "because their finding is not supported by the evidence." The other exceptions worthy of notice are that the referees failed to make specific findings upon a number of alleged issues. The court sustained the exceptions as a whole, and, without again referring the matter, made its own finding on the reported evidence, and entered judgment for plaintiff, and this action of the court presents the first question for consideration.

1. Under the present statute, the constant practice, in this class of cases, is for the courts to review the findings of the referees upon the evidence reported by him, and to correct the findings when erroneous. When the evidence is preserved, these findings may be reviewed and corrected on an appeal to this court. Ely v. Ownby, 59 Mo. 438; O'Neill v. Capelle, 62 Mo. 208; Smith v. Paris, 70 Mo. 616. But an examination of these cases will show that they either involved an...