First Nat. Bank of Shawnee v. Okla. Nat. Bank of Shawnee
| Decision Date | 31 March 1911 |
| Docket Number | Case Number: 750 |
| Citation | 1911 OK 121,118 P. 574,29 Okla. 411 |
| Parties | FIRST NAT. BANK OF SHAWNEE v. OKLAHOMA NAT. BANK OF SHAWNEE. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--Necessary Parties on Appeal. An action was begun by one bank against another; subsequently thereto, certain stockholders of one of the parties began an action involving incidentally some of the issues presented in the former case. On the issues being made up in both cases, they were consolidated and submitted to a referee for trial. Prior to the beginning of the trial the referee took up the issues in the first case filed and tried them separately and independent of the issues presented in the other case. On making his report to the court this action on his part was approved. On appeal to this court the stockholders in the second action were not necessary parties to the appeal, and a motion to dismiss the proceeding in error because they were not made parties will be denied.
2. REFERENCE--Review of Evidence--Necessity for Bill of Exceptions. Where a referee, in obedience to an order of the court, reports to the court, as a part of his report, the evidence heard before him, the same is thereby made a part of the record and is subject to review by virtue thereof and a bill of exceptions is unnecessary.
3. REFERENCE--Review of Evidence--Motion for New Trial--Where and When to Be Filed. To secure a review of the evidence taken on a trial before a referee, a motion for a new trial must be filed in the trial court and not before the referee, and, except for the cause of newly discovered evidence, must be at the term the report is filed, and, unless unavoidably prevented within three days thereafter; nor will filing of motions to secure a correction or annulment of the report stay the running of the statutory time so fixed.
4. REFERENCE--Findings of Fact--When Final--Judgment--Motion for New Trial. The findings of fact of a referee, where not challenged within a proper time and manner, become final, and exceptions to a judgment rendered thereon are of law, and not fact, and can not be raised on a motion for a new trial.
5. APPEAL AND ERROR--Case-Made--Time for Service. Where a motion for a new trial is unnecessary and no question of fact can be raised under the record, it is a nullity and will not have the effect of staying the running of the statutory time within which a case-made must be served.
6. SAME. A party desiring to appeal has three days by statute in which to serve a case after a judgment or order is entered, and unless such case is served within that time, or within an extension of time allowed by the court or judge within such time, the case will not be considered in this court.
Error from District Court, Pottawatomie County; W. N. Maben, Judge.
Action between the First National Bank of Shawnee and the Oklahoma National Bank of Shawnee. From the judgment the former brings error. Dismissed.
M. L. McKenzie and W. S. Pendleton (Cassidy & Engart, of Counsel), for plaintiff in error.
B. B. Blakeney, for defendant in error.
¶1 This case presents error from the district court of Pottawatomie county. The above-entitled action, along with another brought by certain stockholders of one of the concerns, were consolidated by the district court and together submitted to a referee. On their coming on for trial the referee, for the purpose of the hearing, separated the cases, trying the above-entitled cause separately and apart from the stockholders' case, and the court in its judgment approved this action on his part. The issues in the stockholders' suit, as related solely to that case, were not tried, and there was no relief granted or denied to them which was not necessarily involved in the trial on its merits of the action first brought. Hence, there was no error in retaining the issues in the stockholders' suit for further disposition by the court or referee, although the cases were originally consolidated. See Herbert v. Wagg et al., 27 Okla. 674, 117 P. 209. The real fact is that the stockholders' case was not tried, and the fact that the case-made was not served on the parties thereto, under these circumstances, presents no cause for dismissal.
¶2 The balance of the points made upon which dismissal is sought are predicated upon the practice involved in cases where reference for trial is made to referee. The investigation of the authorities on the several questions raised and presented by counsel has taken a somewhat extended range, resulting in the discovery that on this practice different state courts on the same statutes have taken different views and the conclusions have sometimes not been altogether harmonious even in the same court. Our statute on the subject is as follows: Section 5810, Comp. Laws of Oklahoma 1909, provides for the reference of all or any issues in an action, whether of fact or law or both, upon written consent of the parties or upon their oral consent in court entered upon the journal. Section 5811, id., provides that when the parties do not consent the court may, upon application of either, or upon its own motion, direct a reference in a number of stated cases, not necessary to here notice specifically. Section 5812, id., speaks with particular reference to the conduct of the trial before the referee. This section it is necessary for us to note particularly, and it is as follows:
¶3 Section 5814, id., provides:
"It shall be the duty of the referees to sign any true exceptions taken to any order or decision by them made in the case, and return the same, with their report, to the court making the reference."
¶4 One of the general rules with reference to this practice, to which all of the courts yield their assent, is that where a case is submitted to a referee to find and report the facts and conclusions of law to the court and no bill of exceptions is allowed and signed by the referee, preserving the evidence, the court cannot consider the question of the sufficiency of the evidence to support the findings of the referee. Wichita Mining & Improvement, Co. v. Hale et al., 20 Okla. 159, 94 P. 530; Iralson v. Stang et al., 18 Okla. 423, 90 P. 446; Campbell et al. v. Sherman, 20 Okla. 185, 95 P. 238; Pettis et ux. v. McLain et al., 21 Okla. 521, 98 P. 927; Block v. Pearson et al., 19 Okla. 422, 91 P. 714.
¶5 These authorities, however, seem to take no note of the character and scope of an order of reference such as was made in the case at bar, which provided for the referee to try the case and "to hear and report on the same * * * and to report to this court his findings on the facts and conclusions upon the law, together with all the evidence taken before him upon the trial of this case." Under such an order the courts which have dealt with it have, so far as we have been able to discover, treated the evidence so returned as a part of the record, made so by the order of the court, and where this is done a bill of exceptions is rendered unnecessary. Block v. Pearson et al., supra; Iralson v. Stang et al., supra.
¶6 In the cases last noted, while the question was not directly involved, it was treated as practically settled, and in the case of The City of Newton v. Toevs, 82 Kan. 15, 107 P. 543, the learned Justice Benson, of the Supreme Court of Kansas, likewise so treated this proposition. In this case it appears that the bill of exceptions was presented and signed too late, and in the discussion of the facts it appeared that the defendant did not ask to have the report withheld from the files until he could prepare a bill of exceptions to be presented to the referee for allowance, nor did he make application to have the report returned to the referee for that purpose, "nor did he ask for an order requiring the referee to report the evidence", and the court, in stating the remedies to which a party would, under such circumstances, be entitled, stated that "an order might have been asked for requiring the referee to report the evidence." To the same effect are the cases of Goodrich et al. v. Mayor, etc., of Marysville, 5 Cal. 430, and Goodale, Adm'r, v. Case et al., 71 Iowa, 434, 32 N.W. 414. So that where the referee is required by the court to report the evidence taken, it will thereby be brought into the record for review by the trial court without a bill of exceptions, which creates an exception to the general rule noted in the case of the Wichita Mining & Improvement Co. v. Hale et al., supra, and the other authorities noted above. Where such an order is not obtained there can be no doubt on the proposition that a bill of exceptions is necessary in order to make available before the trial court alleged errors occurring in the proceedings had before the referee. The order in this case requiring the referee to report the evidence dispensed with the necessity of a bill of exceptions, and so it must be held that the motion on this ground is not well taken.
¶7 It would, without doubt, be good practice, on the conclusion of the evidence taken by a referee, to allow counsel for the several parties to present motions, argument, or briefs to assist him in coming to a correct conclusion on the facts and law, and after the report is prepared due and timely...
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