Delp v. Schiel

• Decision Date: 29 July 1960
• Parties: Agnes O. DELP, formerly Agnes Schiel, by her guardian ad litem, Harold F. Delp, Respondent, v. Clifford T. SCHIEL, Appellant, and Schiel Investment Company, a corporation, and Pacific Motors, Inc., a corporation, Defendants. Agnes O. DELP, formerly Agnes Schiel, by her guardian ad litem, Harold F. Delp, Respondent, v. SCHIEL INVESTMENT CO., a corporation, Defendant, and Clifford T. Schiel, Appellant.
• Court: Oregon Supreme Court

Page 299

354 P.2d 299

223 Or. 267

Agnes O. DELP, formerly Agnes Schiel, by her guardian ad

litem, Harold F. Delp, Respondent, v. Clifford T. SCHIEL, Appellant, and Schiel Investment Company, a corporation, and Pacific

Motors, Inc., a corporation, Defendants.

Agnes O. DELP, formerly Agnes Schiel, by her guardian ad

litem, Harold F. Delp, Respondent, v. SCHIEL INVESTMENT CO., a corporation, Defendant, and Clifford T. Schiel, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted July 14, 1960.

Decided July 29, 1960.

McDannell Brown, Portland, argued the cause and filed briefs for appellant.

William K. Shepherd, Portland, argued the cause for respondent. With him on the brief were G. A. Heikkila and E. Earl Feike, Portland.

Before McALLISTER, C. J., and WARNER, O'CONNELL, GOODWIN and MILLARD, JJ.

MILLARD, Justice pro tem.

This is an appeal by defendant, Clifford T. Schiel, from a decree entered in the circuit court of Multnomah county in a proceeding wherein two suits were consolidated for purposes of trial and decree. These suits had to do with the division of property which had accrued to plaintiff and this defendant during a time when they were married and which it is claimed was to have been divided in accordance with a written agreement entered into by them at or about the time of their divorce. It appearing that an accounting would be necessary, the trial court, anterior to the trial, appointed attorney Robert Clapperton, Esq., as referee in each case and referred the trial of the issues of fact framed by pleadings to the referee who was ordered to 'try said issues and report his findings of fact, conclusions of law and judgment and decree' to the court in the 'manner provided by law.' After the trial had commenced and in each cause the parties, through their respective counsel, acknowledged and in writing stipulated that they had consented and did consent to the trial of the issues before the referee as provided by the court's order. In accordance with the court's order a trial was had before the referee who thereafter filed his report containing findings of fact and conclusions of law containing suggested forms of relief and thereafter the trial court entered the decree in question. While there were other corporate defendants, we shall, when speaking of the defendant, be referring to the appellant.

Defendant first contends the court erred in adopting the report of the referee because he was not qualified to serve in that capacity. First he contends that the order of reference could not be made except in compliance with ORS 17.705(2), which requires the consent of both parties in an equity proceeding. Defendant is not in a position to raise this issue. In each case, through his counsel, he stipulated that he had consented and did consent to trial by referee and thereby waived any objection that he could have made.

Defendant further states that the referee was disqualified because of failure to take an oath before entering into his duties. The record does not disclose that such an oath was taken but other than that it does not disclose that an oath was not taken. Defendant's counsel in his brief states that it was so discovered after the trial. We find nothing in the record to this effect other than as stated. It might be well argued that under such circumstances there is a presumption that official duty is regularly performed and, therefore, since the record is silent, it will be presumed that such an oath was taken. See Appel v. Fleuchaus, 8 N.J.Misc. 501, 151 A. 97; Logan v. Brown, 20 Okl. 334, 95 P. 441, 20 L.R.A.,N.S. 298. In any event, an oath is not required of a referee in the absence of statutory requirement. Meyer v. Eichler, 92 Or. 1, 4, 179 P. 659. We find no such statutory requirement in this state. Nevertheless, defendant says that such is required by Title 4, § 101, U.S.C.A., wherein every judicial officer of a state is required to take an oath before entering upon his duties. But generally a referee is not a judicial officer. Underwood v. McDuffee, 15 Mich. 361, 365, 93 Am.Dec. 194. It is not the referee but the court who exercises judicial power in a constitutional sense when it grants judgment or decree based upon the facts found by the referee. In any event, failure by a referee to take an oath is a mere irregularity which is waived by the parties proceeding to trial without objection on that ground. Newcomb v. Wood, 97 U.S. 581, 24 L.Ed. 1085; Logan v. Brown, supra. We do not find error in this assignment.

As his next assignment, defendant contends that the 'report of the referee should have been set aside upon defendant's motion on the grounds that the same did not comply with the requirements of a statute.' The motion referred to is not set forth as a part of this assignment. The only motion to set aside the referee's report contained within appellant's brief was a motion to set aside that report on the ground that it was invalid because of this failure of the referee to take an oath. We have already disposed of this contention and, hence, we find this assignment without merit. It is noted that defendant in his brief under this assignment attempts to argue some other point not assigned as error. It is not up to this court to rephrase assignments of error.

It is next contended that the trial judge erred in approving and adopting the report of the referee as the basis for his decree without considering the evidence upon which the report was based. The transcript of testimony now before us shows that it was filed as a part of the records of the case on March 26, 1958. The jacket containing the exhibits shows they were filed the same day. The court signed and entered this decree on December 31, 1958. The court, in its decree prior to decision, stated that it had examined the 'report of the referee and all the matters of record, stipulations, briefs which in narrative form covers all of the evidence [and] exhibits adduced in said trial before said referee.' (Emphasis supplied.) Further, the decree reads that the report of the referee was not only correct as to form but also as to 'substance.' It is incumbent on the court to reach its conclusions of fact and law from the evidence, uninfluenced by the opinion of the referee, when the court on its own motion enters the order of reference. Craig v. California Vineyard Co., 30 Or. 43, 51, 46 P. 421; 126 A.L.R. 320 et seq. This rule of law does not, however, prevent the trial court from adopting the report of the referee as its own. In re Level, 81 Or. 298, 302, 159 P. 558. Under the circumstances, we are unable to say that the court failed to examine the evidence. On the other hand, it affirmatively appears that the trial court examined all matters of record which would necessarily include the transcript of testimony and exhibits. We find no merit in this assignment.

The defendant next contends that the court erred in overruling the decree of the divorce court with reference to the effect to be given to a so-called 'Sales Agreement' and in disregarding the accounting by the defendant for the proceeds of the sale of some of the joint properties. In reviewing this double-barrelled assignment, we will first consider the legal effect of the 'Sales Agreement.' In the referee's opinion adopted by the trial court it is stated to be 'a sterile and ineffective agreement.' This document was signed by both the parties and submitted to the divorce court as a property settlement agreement. The divorce court in its findings of fact, after reciting that such a property settlement was entered into, had this to say:

'That this contract has been partially carried into effect and that because of this property settlement agreement and the partial performance thereof, it is at this time impossible for this court to determine the property rights of the parties hereto other than in accord with said contract, and that if this property settlement agreement is not performed to the satisfaction of both parties it will of necessity have to be determined by a separate proceeding.'

There was no reference made to this contract in the conclusions of law. In its decree the divorce court expressly provided: 'That no determination be made at this time in this case relative to the properties owned by the parties hereto at the time of the commencement of this suit but that the property settlement agreement entered into by the parties hereto subsequent to the commencement of this suit be left in full force and effect to be carried out in accordance with its terms by the parties hereto.' (Emphasis supplied.) It thus clearly appears that the divorce court made no determination of property rights, never approved or confirmed the so-called property settlement agreement, and, in effect, said that if there was disagreement, it would have 'to be determined by a separate proceeding.' While the decree of the divorce court was res judicata as to all matters therein determined that rule may not be invoked as to an issued raised therein but not determined. Harvey et al. v. Getchell et al., 190 Or. 205, 215, 225 P.2d 391. See cases there cited. In any event, mere approval does not make a proposed property settlement agreement a part of the decree. In such cases, the rights of the parties depend on contract and not the decree. Hagen v. Hagen, 193 Or. 369, 381, 238 P.2d 747. We hold, therefore, that the divorce decree was not res...