Reinecke v. Jod

• Decision Date: 31 March 1874
• Parties: HENRY REINECKE, Respondent, v. MICHAEL JOD, Appellant.
• Court: Missouri Supreme Court

56 Mo. 386

HENRY REINECKE, Respondent,

v.MICHAEL JOD, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Thos. B. Childress, for Appellant.

Finkelburg & Rassieur, for Respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action in the nature of a bill in chancery, for the settlement of a partnership between plaintiff and defendant.

The petition alleges a partnership in quarrying rock, and in the purchase of a lot in St. Louis for that purpose. The plaintiff bought the lot in his own name for the partnership. The defendant denied that this purchase was for the partnership, and the chief litigation was in regard to this purchase. By consent of parties the case was referred to a referee to report upon, and adjust the partnership accounts between the parties.

The referee made a full and elaborate examination of the whole case as directed by the court and filed his report in court on the 17th day of October, 1871. The defendant afterwards, on the 11th day of November, filed exceptions to this report, which were by the court overruled, and he excepted to this ruling. The referee found a balance in favor of the plaintiff, and the court confirmed the report, and rendered a judgment thereon in favor of the plaintiff. The defendant afterwards in due time filed a motion for a rehearing, which was overruled, and he appealed to the General Term where the judgment at Special Term was affirmed, and he has appealed to this court.

The main points relied on here are objections to the allowances made by the referee in favor of the plaintiff, as being unsupported by the evidence. It does not appear from the record upon what ground the exceptions to the report of the referee were overruled. The law requires exceptions to be filed within four days in term after the report is filed. (1 Wagn. Stat., 148, § 41.) These exceptions were not filed within the prescribed time, and might have been overruled for that reason.

But I have examined the evidence and find no merit in the exceptions. The defendant also makes the point here, that the case should have been set down for hearing after the report of the referee was made, and the issues re-tried by the court without regard to the report of the referee. That is not the law in this State. Unless exceptions to the report are allowed, the court confirms the report, and judgment must be rendered thereon, in the same manner and with like effect as upon a special verdict. (Wagn...