Howe v. City of Hobart, Corp.

• Decision Date: 13 February 1907
• Citation: Howe v. City of Hobart, Corp., 1907 OK 20, 90 P. 431, 18 Okla. 243 (Okla. 1907)
• Parties: R. D. HOWE v. THE CITY OF HOBART, a Municipal Corporation.
• Court: Oklahoma Supreme Court

1907 OK 20

90 P. 431

18 Okla. 243

R. D. HOWE v. THE CITY OF HOBART, a Municipal Corporation.

Supreme Court of Oklahoma

Decided: February 13, 1907

Syllabus

¶0 1.APPEAL AND ERROR--Practice--Exceptions--Referee.This court cannot consider assignment of error attacking the action of a referee before whom a case was tried in the district court.Such action when complained of must be attacked in the district court, and the action of the district court thereon may be assigned as error in this court.

2.SAME--Same.The evidence taken before a referee in a cause where the referee is directed to try the cause, make findings of fact and conclusion of law and report the same to the court, can only be preserved and made available for review in the district or supreme court by incorporating the same into a bill of exceptions and having the referee to allow and sign the same.

3.SAME--Same.The rulings, findings and report of a referee can only be made the subject of review in this court when first presented to the district court by a motion for a new trial, or by motion to set aside and vacate the findings and conclusions for errors set forth in such motions.

Error from the District Court of Kiowa County; before Frank E. Gillette, Trial Judge.

Ernest M. Bradley, for plaintiff in error.

John A. McKeene, for defendant in error.

BURFORD, C. J.:

¶1 It appears from the case made attached to the petition in error, that the plaintiff in error brought an action in the district court of Kiowa county to recover compensation alleged to be due him as city attorney of the city of Hobart.He alleged that he was the duly elected, qualified and acting city attorney of the city of Hobart for a certain term, and that the mayor and common council had attempted to remove him from office and prevented him from discharging his duties or performing the functions of said office, and refused to pay him the salary, fees and emoluments belonging to said office.

¶2 The city answered that Howe had been removed by the mayor and council in the exercise of their authority, and that the office of city attorney for the time Howe claims compensation had been filled by other persons acting as such officer, and the salary and fees had been paid to such other officials.

¶3 The cause was sent to a referee for trial and the referee ordered to try the cause, determine the facts and report his findings of fact and conclusions of law to the court.The cause was tried to the referee who heard the evidence, and made a number of special findings upon which he stated his conclusions, and filed the same with the court.

¶4 The petition in error embraces thirteen separate and several assignments of error, twelve of which attack the action of the referee and complain of his findings of fact or conclusions of law, and only one, the 13th, refers to the action of the court which rendered the judgment in the cause.

¶5This court has no original jurisdiction to review the action of the referee.If the plaintiff in error desired to have this court review any of the rulings or findings of the referee he should have first presented the questions to the court...