Shipman v. Fletcher.1

• Decision Date: 13 June 1895
• Parties: SHIPMAN. v. FLETCHER.1
• Court: Virginia Supreme Court

22 S.E. 458

91 Va. 473

SHIPMAN.

v.FLETCHER.¹

Supreme Court of Appeals of Virginia.

June 13, 1895.²

Equity—Reports of Commissioner—Review by Trial Court — Accounting between Partners—Decree—Correction.

1. When alleged errors in the report of a commissioner in chancery are brought to the attention of the court, it is the duty of the court to examine the evidence and review the conclusions of the commissioner.

2. Where the evidence before the commissioner in chancery is conflicting, the court will review the evidence, and if not satisfied will overrule the findings of the commissioner.

3. Where the accounts of a partnershipwere complicated, so that absolute accuracy in their settlement was impossible, and the court reached the decision very nearly the same as that reached by experts selected by the parties, the judgment will not be disturbed.

4. Code 1887, § 3451, providing for the correction of errors in decrees rendered by default, and also in litigated cases, does not permit the court, after a final decree had been entered on the report of a commissioner in chancery at the instance of the commissioner, to correct the decree because of a mistake of the commissioner in omitting an item in the accounting.

Appeal from circuit court of city of Alexandria; James Keith, Judge.

Bill by John J. Shipman against William Fletcher for an accounting. From the decree, John J. Shipman appeals. Affirmed.

W. Willoughby and John W. Daniel, for appellant.

Edmund Burke, A. W. Armstrong, Staples & Munford, and Moore & Son, for appellee.

RIELY, J. This is the sequel of the case of Shipman v. Fletcher, reported in 82 Va. 601, and in 83 Va. 349, 2 S. E. 198. By the first decision made by this court (82 Va. 601), the award of John A. Baker and F. L. Moore, to whose arbitration William Fletcher and John J. Shipman had submitted all matters of indebtedness between them except such as arose from the work done by them on the James Creek canal, was set aside and annulled, and the matters embraced by the arbitration directed to be referred by the circuit court to one of its commissioners in chancery for account and report. While the appeal assailing the validity of the award was pending in this court, an account was taken and settled, and report thereof made to the circuit court, by a special commissioner appointed by it for the purpose, of the matters of indebtedness between Shipman and Fletcher growing out of the James Creek canal contract. In taking and settling this account, the commissioner excluded from consideration all matters embraced in the arbitration, because they had been adjudicated and were covered by the award. The second appeal was taken from the decree of the circuit court confirming the report of the special commissioner, and was based on the ground that the commissioner had erred in not considering and embracing in his settlement all the partnership transactions between the parties, which were alleged to be so connected and related as to cause injustice if settled separately. By the decision of this court on this appeal (83 Va. 349, 2 S. E. 198), the decree of the circuit court, confirming the report of the special commissioner, was reversed, and an account directed to be taken of all of said matters, as well those embraced in the arbitration as those relating to the work done under the contract for the James Creek canal. In pursuance of these mandates of this court, the circuit court, by its two decrees of March 21, 1887, and June 2, 1887, appointed John S Fowler a special commissioner to state and settle and make report of all of said matters between John J. Shipman and William Fletcher. The commissioner, upon such settlement, brought William Fletcher in debt to John J. Shipman in the sum of $14,457.28, with interest thereon from April 1, 1876. To his report, 18 exceptions were taken by John J. Shipman and 55 by William Fletcher. Some of the exceptions of each party were sustained and the others overruled by the court, and the commissioner directed to reform his report in accordance with the rulings of the court His report, when reformed, brought John J. Shipman in debt to William Fletcher in the sum of $500.33 with interest from April 1, 1877. To the reformed report, the plaintiff, John J. Shipman, filed 30 exceptions, and the defendant, William Fletcher, filed 6. A part of these exceptions were sustained, and the others overruled. After giving the credits and making the deductions made necessary by the disposition by the court of the exceptions, a balance of $828.88, with interest thereon from April 1, 1887, was ascertained to be due from John J. Shipman to William Fletcher, and for this sum and the costs of the suit a decree was entered by the court in favor of William Fletcher against John J. Shipman. To this decree John J. Shipman obtained an appeal from this court. The account settled and returned by Commissioner Fowler was made up, not only from the books and papers produced before him by the parties, but also from the depositions of witnesses. Much of the testimony of the witnesses is very conflicting and eminently unsatisfactory. It was earnestly argued, and pressed with much force upon the attention and consideration of the court, that, the matters which the commissioner was called to pass upon and settle being matters of fact, the court should have accepted his findings as conclusive, overruled the exceptions taken to his report, and confirmed it, and decreed according to the indebtedness ascertained by the commissioner. This argument involves the consideration of the office of a commissioner in chancery, and the weight and effect to be given by the court to his report.

In a suit in equity, unlike an action at law, matters of fact as well as questions of law are by the constitution and immemorial practice of the court determined and adjudicated by it. It is impracticable for the chancellor to investigate the matters of fact arising in a cause, and take the testimony to that end, to state and settle the necessary accounts, which are often very complicated, to ascertain and classify the liens upon property, and to perform other functions of a similar nature necessary to the proper adjudication of the matters of law and fact arising in the varied and important litigation which pertains to its jurisdiction. Commissioners in chancery are appointed to assistthe chancellor, and to relieve him in a large measure of these and other duties incidental to the progress and determination of the cause. For this reason they have been aptly termed the "arms of the court." But from the very necessity of their appointment and the nature of their office, their work is subject to the review of the court. It may accept it or reject it, in whole or in part, as its judgment upon such review may dictate, whether it be of law or fact. Commissioners are to assist the court, not to supplant it. There is a wide difference between the trial and decision of a suit in equity and of an action at law. In the former, the court finds and decides upon both the facts and the law; while in the latter the jury are the triors of the facts, and the court expounds the law. There is no proper likeness between the report of a commissioner upon matters of fact and the verdict of a jury. In an action at law jurors are, under the law, the judges of the facts, and where the testimony is conflicting their verdict is conclusive. They are not in any sense the agents or assistants of a court of law, but perform within their appointed sphere a principal function of judicial trial. The court has a limited revisory power over their action, and may within certain limits set aside their verdict and award a new trial, but cannot find the facts. The facts are within the domain of the jury, and the court may not intrench upon it. But not so with the commissioners of a court of equity. They are its assistants, and their work is subject to the absolute review of the power they are appointed to assist. A court of equity cannot abdicate its authority or powers, nor confide or surrender absolutely to any one the performance of any of its judicial functions. It may rightfully avail itself of the eyes and arms of its assistants in the proper preparation for judicial determination of the many complicated, difficult, and intricate matters upon which Its judgment is invoked, but in it resides the authority, and to it solely belongs the responsibility, to adjudicate them. In it remains the right to form its own conclusions from the results laid before it by its commissioners, and to pronounce its own judgments. Their entire work is subject to its review, consideration, and judgment, and it is in no wise precluded from doing so by their findings or conclusions. There is no propriety, therefore, as is frequently claimed should be done, in holding that, where the evidence is conflicting, the report of a commissioner in chancery is entitled to the same weight, and should be given the same effect, as the verdict of a jury. While the court possesses this absolute power of review, it is the practice to accept the report as prima facie correct, and to adopt it unless there is dissatisfaction with the report, and the dissatisfaction is expressed in the form of exceptions filed to it 2 Rob. Old Prac. 383; Peters v. Neville 26 Grat. 549, 559; Cralle v. Cralle, 84 Va. 198, 201, 6 S. E. 12; Bank v. Sprague, 23 N. J. Eq. 81; Van Ness v. Van Ness, 32 N. J. Eq. 670. The alleged errors must in this way be brought to the attention of the court. When this is done, it is both the province and the duty of the court to examine the evidence and review the conclusions of its commissioner, provided the evidence on which his conclusions are based is returned with his report, or the proper steps are taken to put it before the court. Jaques v. Methodist Episcopal Church, 2 Johns. Ch. 543; Jackson v. Jackson's Ex'r, 3 N. J. Eq. 96. The court is presumed to be more competent to pass upon the evidence and...