The State ex rel. Webster v. Johnson
| Decision Date | 21 January 1896 |
| Citation | 33 S.W. 781,132 Mo. 105 |
| Parties | The State ex rel. Webster et al. v. Johnson |
| Court | Missouri Supreme Court |
Writ denied.
Hiram J. Grover and Geo. Barry Webster for relators.
(1) The appointment of respondent as referee was illegal, improper and in violation of relator's statutory right and he is without jurisdiction in the premises. (2) The referee is not merely an adding machine -- he is a separate judicial tribunal. In stating an account he must decide what items are to be included in that account and what excluded. This involves the exercise of a judicial power. It has been uniformly held that a referee is a court in himself. Cemetery Ass'n v. Woodruff, 2 Disney, 216; Plant v. Fleming, 20 Cal. 92; Downer v Downer, 11 Vt. 395. (3) They have power to dismiss for failure to prosecute. Calkin v. Adirondack Co., 19 Hun, 389. (4) Or if the complaint states no cause of action. Coffin v. Reynolds, 37 N.Y. 640.
Cecil V. Scott, Fidelio C. Sharp, with M. & J. R. Kinealy, for respondent.
(1) Revised Statutes, section 2139, does not have a controlling direction in references of the present character. (2) Besides, this reference was not made in violation of the provisions of that section.
Prohibition.
This is an application for a writ of prohibition to prevent the respondent Edward P. Johnson from proceeding to take an account as referee by virtue of an interlocutory decree rendered by the circuit court of the city of St. Louis in a certain cause wherein Marshall P. Sanguinette and Annie, his wife, are plaintiffs, and Webster and Flanagan are defendants.
From the averment of the petition it appears that the suit is one in equity for an accounting, and that upon a hearing the court made a finding of the issues for plaintiffs and among other things decreed and ordered as follows: "And the court adjudges that the defendants shall account to and with the plaintiff Annie E. Sanguinette for their transactions, receipts, expenditures under said contract and that the account shall be stated and the balances between said Annie E. Sanguinette and the defendants, and to that end the court doth further order that this case be referred to Edward P. Johnson, Esq., to take such account" and then directed how said account should be taken and concluded as follows: "And the court being unable with the testimony now before it to make this interlocutory decree final all other matters are reserved for further consideration by the court until the filing of said report by the referee."
On the twenty-fifth of September, 1895, this application was presented to a judge of this court to require said referee to show cause why he should not be forever prohibited from hearing said case and taking said account as above ordered.
The petitioners assert that said appointment of said referee is void because neither they nor their counsel were afforded any opportunity to agree with plaintiffs' counsel or plaintiffs upon a suitable person to act as referee as was their right under section 2139, Revised Statutes, 1889, and that defendants did not disagree with plaintiffs as to such referee.
The power and right of a court of equity in this state to appoint a referee without the consent of the parties and of its own motion in a case "where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect" is expressly granted by the second clause of section 2138, Revised Statutes, 1889. The courts of this state may refer cases "by consent" or "without consent." Sections 2137 and 2138. But by section 2139 it is provided:
The learned counsel for plaintiffs insist that unless the parties are afforded an opportunity to agree or disagree the circuit court is wholly without jurisdiction to make the appointment. If they are correct, then we think prohibition is an appropriate remedy; that while an appeal or writ of error might bring the question here for review it would fall short of that adequate redress to which parties are entitled. On the other hand, it is insisted that section 2139 has no reference to the appointment of referees under section 2138, or the cases, which may be referred without consent, but refers solely to cases referred by mutual consent as provided by section 2137.
The power to appoint a referee in a case when the taking of an account is necessary for the information of the court before judgment had long been exercised by courts of chancery prior to the adoption of our code in 1849, and it is evident that it was the purpose of the legislature to...
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