DMW Contracting Co. v. Stolz, No. 9223.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: GRONER, Justice, and EDGERTON and CLARK, Associate Justices
• Citation: 81 US App. DC 334,158 F.2d 405
• Parties: D. M. W. CONTRACTING CO., Inc., et al. v. STOLZ.
• Docket Number: No. 9223.
• Decision Date: 09 December 1946

81 US App. DC 334, 158 F.2d 405 (1946)

D. M. W. CONTRACTING CO., Inc., et al.
v.
STOLZ.

No. 9223.

United States Court of Appeals District of Columbia.

Argued October 16, 1946.

Decided December 9, 1946.

Writ of Certiorari Denied March 17, 1947.

Mr. Bernard J. Gallagher, of Washington, D. C., with whom Mr. M. Walton Hendry, of Washington, D. C., was on the brief, for appellants.

Mr. Maurice Friedman, of Washington, D. C., with whom Mr. Oliver F. Busby, of Washington, D. C., was on the brief, for appellee.

Before GRONER, Chief Justice, and EDGERTON and CLARK, Associate Justices.

Writ of Certiorari Denied March 17, 1947. See 67 S.Ct. 980.

CLARK, Associate Justice.

Appellee recovered a judgment in the District Court against the appellants for the balance due on a sub-contract to furnish certain granite for the construction of what is called the East Building of the Municipal Center, Washington, D. C. The final judgment and order of the court below adopted as its findings of fact and conclusions of law the report of an auditor submitted to the court pursuant to an order of reference. This appeal is from that final judgment.

The litigation started when the appellee, Stolz, was granted leave to intervene in an action by the D. M. W. Contracting Company, Inc., hereafter referred to as D. M. W., against the District of Columbia for the balance due on the general contract for the construction of the Municipal Center. The District of Columbia filed an answer and counterclaim, bringing into the action D. M. W.'s two sureties on its contract, Hartford Accident and Indemnity Company and Ætna Casualty and Surety Company, who are also appellants in this case. The

158 F.2d 406

court, on its own motion and without objection by the parties, referred the entire matter to the court's auditor "to take testimony upon the issues raised by the pleadings, to make findings of fact and conclusions of law, and to report to this court." Subsequent to this reference, the appellants and the District of Columbia settled, leaving in litigation only the claim of appellee against the appellants

The auditor heard the appellee's case and then continued the hearings because of the alleged illness of D. M. W.'s president and only witness. The case was continued from time to time until the appellee showed to the court's satisfaction that the D. M. W. witness's failure to appear was due to an unwillingness to testify rather than to an inability, whereupon the court ordered the auditor to conclude the cause. Before a report was made the incumbent auditor died. His successor in office requested instructions of the court and was ordered to file his report based upon the existing record. This order was objected to by the appellants. The auditor's report made findings of fact and conclusions of law in favor of the appellee. Appellants filed exceptions to the report and also filed a motion to suppress it. After due consideration of the exceptions and motion and examination of the report, the record and transcript of testimony and proceedings, the court issued a final judgment overruling the motion to suppress and the exceptions, adopting the auditor's report as the findings of fact and conclusions of the court and granting appellee a final judgment of recovery.

The principal issue raised by this appeal is whether the court below was in error in directing the successor auditor, over appellants' objection, to base his findings and report upon...