State v. Hurlstone

• Decision Date: 20 June 1887
• Citation: 92 Mo. 327,5 S.W. 38
• Parties: STATE ex rel. WALKER v. HURLSTONE and others.
• Court: Missouri Supreme Court

5 S.W. 38

92 Mo. 327

STATE ex rel. WALKER v. HURLSTONE and others.

Supreme Court of Missouri.

June 20, 1887.

1. REFERENCE — REVIEW OF FINDINGS.

Whenever the court has the right to order a reference on motion of either party without the consent of the other, as in a case which requires the examination of a long account, it has also the right to review and modify the referee's findings, although such reference is by the consent of all the parties.

2. APPEAL — RECORD — MOTION FOR NEW TRIAL.

Unless a motion for a new trial has been filed in the court below, the supreme court of Missouri will not consider questions presented only by bill of exceptions; and exceptions to a referee's report will not take the place of a motion for a new trial.

J. E. Stephens and E. E. Kimbell, for respondent. Butler & Loy, for appellants.

BLACK, J.

The defendant Hurlstone was elected treasurer of Cedar county in 1878, for the term of two years, and again in 1880 for a like term. At each election he gave bond for the faithful disbursement of the school funds. This suit is prosecuted in the name of the state, at the relation of the county clerk, against the treasurer and the sureties on the first bond. The petition states that he was largely in default to the common-school fund, swamp-land fund, and to the various school-districts, giving the amount to each, and in all making some 50 or 60 items. A like suit was instituted on the second bond to recover the same money, because of alleged breaches during the second term of office. By agreement of all the parties, both cases were referred to the same referee, with directions to hear the evidence, and report upon the law and facts to the next term of the court. The parties stipulated that both cases should be heard by the referee at the same time, and they were so heard. It seems the referee recommended a judgment against the defendants in the other case for over $5,000. In this case he finds that there was a breach of the bond, but says he is unable to ascertain the amount due to each particular fund, and recommends a judgment for plaintiff for nominal damages only. After the report was filed the defendants, except Hurlstone, moved to set aside the reference, which motion was overruled; and all of the defendants in this case excepted to the report of the referee on the ground that the finding as to the breach of the bond was against the evidence, and not supported by any evidence, and because the referee erred in the admission of evidence. These exceptions were also overruled. At the same time the plaintiff filed exceptions to the report of the referee, on the ground that the evidence showed that the treasurer was a defaulter on this bond to the amount of $3,000. The court sustained these exceptions, and on the evidence reported gave judgment for the plaintiff for $3,000 and interest. To all of these rulings the defendants excepted.

The defendants had allowed and filed a bill of exceptions, but filed no motion for a new trial, and the question is whether the exceptions before mentioned can be considered by this court. The law has been long and well settled in this state that unless...