Dundee Mortgage Trust Investment Co v. Hughes

• Decision Date: 09 January 1888
• Citation: 31 L.Ed. 357,8 S.Ct. 377,124 U.S. 157
• Parties: DUNDEE MORTGAGE & TRUST INVESTMENT CO., Limited, v. HUGHES. 1
• Court: U.S. Supreme Court

124 U.S. 157

8 S.Ct. 377

31 L.Ed. 357

DUNDEE MORTGAGE & TRUST INVESTMENT CO., Limited, v. HUGHES.¹

January 9, 1888.

Thos. De Witt Cuyler and Geo. F. Edmunds, for plaintiff in error.

J. N. Dolph, for defendant in error.

WAITE, C. J.

This suit was brought by Ellis G. Hughes against the Dundee Mortgage & Trust Investment Company to recover an amount claimed to be due for professional services. After the pleadings were complete and the issues joined, the following entry was made on the minutes of the court: 'Now, at this day comes the plaintiff, * * * by Mr. George H. Williams, of counsel, and the defendant, by Mr. William H. Effinger, of counsel, and by consent of parties it is ordered that this cause be, and the same is hereby, referred to Mr. Wm. B. Gilbert to take the testimony herein, pursuant to a stipulation to be filed herein within three months from this date, to try said cause, and to report to this court his conclusions of fact and law herein; and said Wm. B. Gilbert is hereby appointed referee for the purpose aforesaid.' Under this order the referee reported, May 5, 1884, that the parties appeared before him January 16, 1884, 'and thereupon the testimony in said cause was taken before me, and the same is herewith filed; that, upon the conclusion of said testimony, the said cause was argued before me by the respective counsel of said parties; that, upon consideration of the pleadings and the testimony herein, I make the following' 'findings of fact,' and 'conclusions of law,' which were then stated. To this report each party filed exceptions. These exceptions were heard by the court, both parties appearing, and, on consideration, the findings of the referee were set aside, and new findings made by the court, on which a judgment was rendered in favor of Hughes, and against the company, for $8,407.61. From that judgment this writ of error was brought. There is no bill of exceptions in the record, and it nowhere appears that any exception whatever was taken to the action of the court at the hearing, or in giving the judgment. The testimony taken by the referee, and by him reported to the court, is not here. The case stands on the pleadings; the order of reference made by consent, which was not, so far as appears, in writing; the report of the referee; the exceptions thereto; the rulings of the court thereon; and the new findings by the court, and the judgment. The errors assigned are, in substance, (1) that the court erred in substituting its own findings of fact for those of the referee, and entering judgment upon its conclusions of law founded thereon; and (2) that the conclusions of law are not supported by the facts found.

Section 221, Code Civil Proc. Or., provides that 'all or any of the issues in the action, whether of fact or law, or both, may be referred upon the written consent of the parties.' A trial by referee is to be conducted in the same manner as a trial by the court, (section 226,) and the report of the referee must...