Tietzel v. Sw. Const. Co.

• Citation: 43 N.M. 435,94 P.2d 972
• Decision Date: 06 October 1939
• Docket Number: No. 4362.,4362.
• Parties: TIETZELv.SOUTHWESTERN CONST. CO.
• Court: Supreme Court of New Mexico

43 N.M. 435

94 P.2d 972

TIETZEL

v.SOUTHWESTERN CONST. CO.

No. 4362.

Supreme Court of New Mexico.

Oct. 6, 1939.

Appeal from District Court, Bernalillo County; Thomas J. Mabry, Judge.

Action by George R. J. Tietzel against the Southwestern Construction Company to quiet title to certain realty, wherein defendant answered and by cross-bill asked that title be quieted as against the plaintiff, and the cause was referred to a master in chancery to hear the evidence. From a decree quieting title in each of the parties to certain portion of the realty involved, the plaintiff appeals and the defendant cross-appeals.

Reversed and remanded with directions to award a new trial.

Prior to enactment of statute providing for references, trial judge in equity suit had power, even without consent of parties, to order a reference, giving only advisory effect to master's finding, but even in equity suit, trial judge could not treat findings of master as presumptively correct, and to be set aside only when manifestly wrong, without consent of parties. Comp.St.1929, §§ 105-901, 105-902.

Frank O. Westerfield and John Venable, both of Albuquerque, for appellant.

John F. Simms and Hugh B. Woodward, both of Albuquerque, for appellee.

SADLER, Justice.

The plaintiff, Tietzel, sued defendant, Southwestern Construction Company, a corporation, to quiet title to certain real estate located within the city limits of Albuquerque. The defendant answered and by cross-bill asked that its title be quieted as against the plaintiff. After issue was joined the defendant moved for reference of the issues to a master in chancery to hear the evidence, make findings and conclusions and report to the court. The plaintiff objected, setting forth specifically his grounds of opposition. After hearing, the objections were overruled, the motion granted and the matter referred to Donald Moses, Esquire, a member of the New Mexico bar practicing law in Albuquerque.

The order of reference was made on February 27, 1937. Hearings before the master were conducted on various dates between April 6 and April 21, 1937. On June 4, thereafter, the cause was reopened before the master on his motion to secure the testimony of C. B. Beyer, an engineer, for the purpose of getting an engineer's description of a certain line which was necessary in order that the master might correctly describe the portion of the disputed areas allocated to each party. Thereafter on June 24, 1937, upon motion of the master, filed June 10, 1937, the court entered an order nunc pro tunc as of May 24, 1937, extending the time until June 10, 1937, for the master to complete hearings, make findings and file his report.

The master's report was filed on June 10, 1937, within the time therefor as extended by the nunc pro tunc order entered as aforesaid. Both parties took exceptions to certain of the master's findings and conclusions and the matter later was heard by the court upon the master's report and the exceptions thereto filed by the respective parties. The trial court after hearing made its own findings and conclusions, the effect of which was to overrule generally the exceptions of the parties to the master's report. It then entered its decree quieting title in each of the parties to certain portions of the real estate involved. The plaintiff kept good at all times his objections to the reference and to the master's actions after expiration of the statutory period of three months for filing his report. Both sides appealed and the first question presented is plaintiff's objection to the reference.

The statute governing references was adopted as a part of our Code of Civil Procedure and appears as Article IX thereof. See L.1897, c. 73, §§ 138-158. The pertinent sections read as follows:

“105-901. References by consent. All or any of the issues in the action, whether of fact or of law, or both, may be referred upon the written consent of the parties. (L. '97, Ch. 73, § 138; C.L. '97, § 2685; Code '15, § 4231.)”

“105-902. References without consent. Where the parties do not so consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:

“First. Where the trial of issues of facts shall require the examination of a long account on either side, in which case referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or

“Second. 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; or

“Third. When a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action. (L. '97, Ch. 73, § 139; C.L. '97, § 2685; Code '15, § 4232.)”

The plaintiff, not having consented to the reference as provided by 1929 Comp. § 105-901, argues that the suit is not of a kind authorizing a compulsory reference under the provisions of 1929 Comp. § 105-902. We readily agree that none of the conditions exist warranting a reference under this section. What then is the effect in this court of a compulsory reference not specifically authorized by the statute made over the objection of one of the parties in an equity case? That is the question. The plaintiff insists that the statute is mandatory and exclusive and renders imperative the award of a new trial where it is ignored. The substance of defendant's argument is that the statute at most is merely directory and that where all the issues in an equity suit are referred even compulsorily the only effect will be to compel a disregard of the master's findings and recommendations and a review of the evidence both by the district judge sitting as a chancellor and by this court upon appeal.

[1] Both parties cite and rely upon the case of Early Times Distillery Company v. Zeiger, 11 N.M. 182, 66 P. 532, 533. Strangely, there is to be found in this case some support for the contentions of each party. Unfortunately, too, a divided opinion as to its effect in the initial work on the case at bar resulted in the cause being taken up and fully considered upon its merits, involving the study of a rather extensive record. A reconsideration of this point, however, results in the unanimous view that the Zeiger case cannot safely be relied upon as establishing defendant's contention as to the effect of a disregard of the statute. We now are all agreed that the statute is mandatory and exclusive and applies as well to suits in equity as to actions at law.

Upon its face the decision in the Zeiger case seems contradictory. The suit was one in equity. The very first declaration to which the territorial court gave expression in the opinion is as follows: “This is not a case which the court had power to refer to a master to hear, try, and determine, or to report the evidence, with his findings of fact and conclusions of law, except upon the written consent of the parties. Code Civ.Proc. (Comp.Laws of 1897, § 2685, subsecs. 138, 139).”

This language supports the contention of plaintiff in the case at bar. Notwithstanding such declaration, however, the court proceeded to review the errors assigned challenging the action of the trial judge in setting aside the master's findings and in substituting his own and affirmed the judgment of the lower court. It is this action of the territorial supreme court in proceeding to grant a review instead of reversing the judgment and awarding a new trial because referred without consent that furnishes the basis of defendant's argument that the statute is not mandatory in the respect here considered and its observance jurisdictional but directory instead. The only consequence argues defendant of disregarding the statute and referring an equity cause not otherwise referable except upon written consent of the parties is reflected in the effect to be given the master's findings. They are to be ignored and the chancellor will review the testimony as if reported by an examiner and make his own findings. This court in turn upon appeal, because in as good position to do so as the trial judge, itself will weigh the evidence; nevertheless, giving “some weight to the findings of the chancellor, and not reverse those findings unless clearly opposed to the evidence,” citing the language of the court's opinion in Medler v. Albuquerque Hotel & Opera House Company, 6 N.M. 331, 28 P. 551, quoted approvingly in Early Times Distillery Company v. Zeiger, supra. Such is the tenor of defendant's argument.

Undoubtedly, this was the disposition made in the Zeiger case of the errors assigned which in each instance as the record in our files discloses was that the chancellor erred in disturbing the findings of the master made upon conflicting evidence. The argument is persuasive and at first blush even convincing. The territorial court had before it an equity case not of a kind which could be compulsorily referred, yet it was referred without consent and over objection. The territorial court upon appeal reviewed the evidence and affirmed the judgment. It did not award a new trial. Thus far the Zeiger case seems quite conclusive as a precedent.

A careful analysis of the case, however, satisfies us that the court never considered the point now presented namely, the exclusive and mandatory character of the statutory reference. In the Zeiger case the plaintiff requested the reference. The defendant objected. The cause was referred over the objection. The matter was heard before the master, the defendant persevering in his objection. Thus far the case is almost on all fours with the one at bar. Now appear the distinctions. In the Zeiger case, the defendant, the party opposing the reference, prevailed below upon exceptions to the master's report and appeared in this court as an appellee. With a judgment in his favor at the hands of the chancellor who had set aside the master's findings, he appeared no...