Holmes v. Turner's Falls Lumber Co.

• Decision Date: 01 January 1890
• Citation: 150 Mass. 535,23 N.E. 305
• Parties: HOLMES v. TURNER'S FALLS LUMBER CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 535

23 N.E. 305

HOLMES v. TURNER'S FALLS LUMBER CO. et al.

Supreme Judicial Court of Massachusetts, Franklin.

January 1, 1890

COUNSEL

Geo D. Robinson, S.T. Field, and F.G. Fessenden, for demandant.

A. De Wolf, for Turner's Falls Co. Bond & Mason, for Turner's Falls Lumber Co.

OPINION

FIELD J.

Since the enactment of the Revised Statutes, the demandant in a writ of entry is entitled to recover rents and profits although damages therefor are not specifically claimed in the writ, and the tenant, if he make the claim, is entitled to an allowance for improvements; and the amount of both these claims may be assessed by a jury. Pub.St. c. 173, §§ 12-35; Raymond v. Andrews, 6 Cush. 265.

On December 1, 1886, the superior court referred the present cause to an auditor. The rule recites that it appears upon an examination of the issue that the trial of said action will require an investigation of accounts, and an examination of vouchers, by the jury, and therefore the court appoints "Edward E. Lyman, of Greenfield, in said county, an auditor, to examine the claims and vouchers, and hear the parties thereon, and make report thereof to the court. And if either of the parties shall neglect to appear before the auditor, after due notice given of the time and place appointed for hearing them, the auditor may proceed ex parte." When this rule was entered, the tenants had pleaded nul disseisin, and had filed a claim for an allowance for improvements. Pending the hearing before the auditor, the parties filed an agreement in writing "that all questions concerning rents and profits, and the value of improvements by the tenants, shall be postponed till after the trial of the question of title, to be determined by an assessor." The hearing proceeded, and the auditor subsequently made and filed his report, in which he found that both tenants had disseised the demandant of a portion of the demanded premises, which he defined by metes and bounds. The demandant at the trial offered this report in evidence. The tenants objected to its admission on two grounds "First, that there is no authority to appoint an auditor in a real action;" and, "second, that the matter of the division line was not included in the reference to the auditor." The exceptions then state that, "it appearing to the court that no exception had been taken to the order referring the case to an auditor, and that all parties had appeared before the auditor and proceeded to a full hearing, and no objection was made till the report was offered in evidence, the court admitted the auditor's report. The tenants excepted." It may be that it was competent for the court to find on the facts which appeared that the parties had consented that the cause should be referred to an auditor, with the usual powers, and that a reference of a cause to an auditor by consent of parties may be made by rule of court as well as a reference to an arbitrator or a referee, and that it was too late for the tenants to take this objection when they made it, even if the court had no authority to appoint an auditor in a real action. See Kimball v. Society, 2 Gray, 517. We prefer, however, to consider the principal question. The history of the practice of referring causes to auditors is examined in Holmes v. Hunt, 122 Mass. 505, and in Locke v. Bennett, 7 Cush. 445. The first statute on the subject is St.1818, c. 142, and it is entitled, "An act for facilitating trials in civil causes." It provided "that whenever, in any action before the supreme judicial court, or any circuit or other court of common pleas, it shall appear to said courts that an investigation of accounts, or an examination of vouchers, is necessary for the purposes of justice between the parties, it shall be lawful for the said courts to appoint an auditor or auditors to state the accounts between the parties, and to make report thereof to the courts as soon as may be," etc. The first statute authorizing the appointment of masters in chancery is St.1827, c. 109, § 4. Lyman v. Warren, 12 Mass. 412, decided in 1815, was an action of debt on a probate bond, in which the defendant confessed a forfeiture, and "prayed to be heard in chancery," on the amount for which execution should issue, and the court, with consent of the parties, appointed three persons as auditors, "to examine and take and state the accounts in the action." The opinion indicates that the appointment of auditors in such a suit was not unknown in practice, although at that time there was no statute authorizing either the appointment of auditors or masters in chancery. The phraseology of St.1818, c. 142, shows that it was the intention of the legislature to authorize the courts named in the act to appoint an auditor or auditors in any civil action in which "an investigation of accounts, or an examination of vouchers," was necessary. Rev.St. c. 96, §§ 25-31, are a re-enactment of St.1818, c. 142, "with the addition of some practical details, but without any material change," as the commissioners say in their report, which was adopted by the legislature. Section 25, Id., provides that "whenever a cause is at issue, and it shall appear that the trial will require an investigation of accounts, or an examination of vouchers, by the jury, the court may appoint one or more auditors to hear the parties and examine their vouchers and evidence, and to state the accounts, and make report thereof to the court." In Whitwell v. Willard, 1 Metc. 216, decided in 1840, a majority of the court held that the Revised Statutes did not authorize the court, without the consent of the parties, to appoint an auditor in an action against an officer for not attaching numerous articles of personal property; and SHAW, C.J., said that the issue "involves no question of debtor and creditor; no examination of book accounts or other vouchers; no relation in which one party is accountant to the other, or in which any question of account can come collaterally in issue." He also said that "the court would not be understood to intimate that the authority to appoint auditors to examine vouchers and state an account depends on the form of the action, and may not extend to an action sounding in tort." The opinion in Locke v. Bennett, ubi supra, perhaps, suggests that the court were not entirely satisfied with the decision of the majority in Whitwell v. Willard. See Rich v. Jones, 9 Cush. 329; Kimball v. First Society, ubi supra. St.1856, c. 202, did not purport to repeal pre-existing statutes, but it provided that "whenever a cause is at issue in any court, whether the form of the action be contract, tort, or replevin, the justice of the court before whom the same is pending may, in his discretion, appoint one or more auditors to hear the parties and report upon such matters therein as may be directed by the said court; and the report in such case shall be prima facie evidence upon such matters only as are expressly embraced in the order of the court." Gen.St. c. 121, §§ 46-50, were intended, as stated in Fair v. Insurance Co., 112 Mass. 320, to be "a condensed re-enactment of the earlier statutes." St.1863, c. 197, provided that "justices of police courts shall have no power to send any case to an auditor, unless both parties shall assent thereto in writing." This, and the sections of the General Statutes which have been cited, were re-enacted in Pub.St. c. 159, §§ 51-55. Pub.St. c. 159, § 51, provides that "when a cause is at issue, whether the form of the action is contract, tort, or replevin, a police district or municipal court, when both parties assent thereto in writing, and any other court, in its discretion, may appoint one or more auditors to hear the parties, examine their vouchers and evidence, state accounts, and report upon such matters therein as may be ordered by the court," etc.

The question is whether the clause, "whether the form of the action is contract, tort, or replevin," restricts the authority of a court to appoint an auditor to these divisions of personal actions. We are of opinion that it does not. An action of waste, an action of ejectment, a writ of entry upon disseisin, and a writ of dower, are, in our practice, mixed actions, in which damages are recovered, as well as the possession of land; and the appointment of an auditor in these actions is often as necessary, for the purposes of justice, as in personal actions. The writ of entry to foreclose a mortgage has been held to resemble a suit in equity as much as an action at law; and there is especial need, in such an action, for the appointment of an auditor. The original statute of 1817 authorized the appointment of auditors in any civil action; but it restricted them to an investigation of accounts. The statute of 1856, c. 202, was passed for the purposes of extending the authority of auditors to hear and report upon any matters in a cause upon which they were directed by the court to report. As the investigation of accounts would arise usually, although not exclusively, in actions of contract, and as the appointment of auditors before St.1856, c. 202, had generally been made in actions of contract, the clause, "whether the form of the action be contract, tort, or replevin," was inserted to show that the legislature did not intend to confine the appointment of auditors to any particular form of personal actions. It may be true that the legislature, in making this enactment, had in mind only personal actions, but the principal clause of the statute is general, and must be held to include any cause at issue; and this statute has been incorporated with the re-enactment of the statute of 1817, which in terms gave authority to appoint an auditor in any civil action. In Corbett v. Greenlaw, 117 Mass. 167, no doubt was expressed...