Johnson v. Owens
| Decision Date | 04 May 1929 |
| Docket Number | 28,445 |
| Parties | CHARLES W. JOHNSON, Receiver of the Emmett State Bank, Appellee, v. WILLIAM L. OWENS, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1929.
Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. REFERENCE--Effect of Delay in Reporting. When a court refers a cause to a referee, with directions to report within a time stated, the fact that the referee does not make his report within such time does not cause the court to lose jurisdiction of the case.
2. SAME--Effect of Extension of Time for Report. A referee was appointed with directions to make his report within a time named. Within that time an order was made extending the time for making the report to a day certain. Three days after the expiration of that time the court made an order further extending the time for making the report. Held, that the last order was tantamount to an order rereferring the cause to the referee upon the same terms as the original order of reference, except as to the time for his report.
3. SAME--Amendment of Report After Filing. About two weeks after filing his report, and at the same term of court, the referee applied to the court to amend one of the findings of his report on the ground that the same was entered by mistake and oversight. Held, that the court had jurisdiction to consider the application and to permit the amendment.
4. SAME--Jurisdiction to Modify Report. After the filing of the report of the referee, and on the consideration of a motion duly filed for a new trial and for the modification of the report, the court has jurisdiction to modify the report.
5. APPEAL AND ERROR--Review--Findings of Referee. Findings made on controverted question of fact by the referee and approved by the trial court will not be disturbed on appeal when there is substantial evidence to sustain them.
F. G. Drenning, of Topeka, for the appellant.
A. E. Crane, B. F. Messick and A. Harry Crane, all of Topeka, for the appellee.
This is an action on a promissory note for $ 3,306 executed by defendant May 29, 1918, to the plaintiff bank. The answer did not deny the execution of the note, but averred that it was without consideration, and by cross petition alleged that defendant had been engaged in the mercantile business; that on October 4, 1914, he had been induced by plaintiff's cashier to give notes aggregating $ 6,000 to the bank for a claimed overdraft which did not exist; that about that time he turned over to the bank notes in the sum of $ 906.89 as collateral security for the notes given; that in March, 1915, he had turned over to plaintiff's cashier, as collateral security for the notes previously given, about 250 itemized times sales accounts known as "McCaskey accounts," aggregating $ 7,525.68, and about 150 book accounts amounting to $ 5,472.77, and that about July 15, 1915, he had indorsed promissory notes payable to him and delivered them to the plaintiff bank in the sum of $ 5,098.48 for collection, and at the same time paid plaintiff $ 1,500 in cash to apply upon his notes; that he had borrowed through plaintiff $ 5,000 of a bank at Kansas City to pay certain notes and overdrafts, for which he had not been given credit. He asked for an accounting, and alleged there was a substantial sum due him from the bank, for which he prayed judgment. The allegations of the cross petition were put in issue by appropriate pleadings. The trial court appointed Hon. Otis E. Hungate referee to take the evidence on the issues made by the pleadings and to make findings of fact and conclusions of law, and to report to the court. This was done. Later the matter was rereferred to the same referee for the taking of additional testimony. The referee resigned without making an additional report, and the matter was then referred to Hon. Clayton E. Kline, with directions to make findings of fact and conclusions of law upon the evidence offered before the former referee and which might be offered before him. He filed his report June 11, 1927. Plaintiff moved for a new trial. Defendant also moved for a new trial and for the modification of many of the findings and conclusions of the referee. The court modified two of the referee's findings, denied other requests for modification, overruled the motions for a new trial, and rendered judgment for plaintiff for $ 1,716.65 in accordance with the findings of the referee.
Defendant has appealed, and discusses several questions. One relates to the time of the filing of the report of the referee. The order appointing Hon. Clayton E. Kline referee was made February 2, 1927, and directed him to make his report in sixty days. On March 29, 1927, the time was extended to April 30, 1927. On May 3, 1927, the time was again extended to June 11, 1927, and his report was filed on that date. Appellant contends that the powers of a referee are limited by the order of his appointment; that when such order directs him to report within a stated time and he does not do so, his authority ceases (De Long v. Stahl, 13 Kan. 558), and that at the time for filing--the report not having been filed--the court was without authority on May 3 to make an order further extending the time. We think the court did not lose jurisdiction of the case because the referee had not filed the report within the time required. (23 R. C. L. 297; 34 Cyc. 832.) The case could have been tried to the court or rereferred. The order of May 3 was tantamount to an order rereferring the matter to the same referee upon the same terms as the original order of reference to him, except as to the time of his making this report. No objection was made on this ground to the hearings before the referee, or to his report or its consideration, until October 26, 1927. The fact that the order extending the time was not made as early as April 30 is a technical error not affecting the substantial rights of the parties and should be disregarded. (R. S. 60-3317.)
On June 28, 1927, the referee made application to the court for leave to amend in part one of his findings of fact on the ground that the same was entered by mistake and oversight. The court, on hearing this application, granted the referee leave to so amend his report, and the amendment was then made. Appellant contends that this amendment was without authority. It would have been had the referee undertaken to make the amendment without applying to the...
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