United States v. Ramsey

• Citation: 158 F. 488
• Parties: UNITED STATES v. RAMSEY et al.
• Decision Date: 10 December 1907
• Court: U.S. District Court — District of Idaho

158 F. 488

UNITED STATES v. RAMSEY et al.

United States Circuit Court, D. Idaho, Central Division.

December 10, 1907

N. M Ruick, U.S. Dict. Atty.

Morrison & Pence, for defendants.

DIETRICH District Judge.

The defendant Ramsey was marshal for the district of Idaho during the period from January 14, 1899, to June 30, 1902. The defendant Fidelity & Guaranty Company was surety upon his official bond as such marshal. During Ramsey's term of office there were placed to his credit by the plaintiff divers sums of money aggregating a large amount. From time to time, in connection with the performance of his official duties, Ramsey paid expenses and claims out of the moneys thus placed to his credit, and reported such expenditures and accounted for and repaid to the plaintiff the balance. Exceptions were taken by the officers of the Auditing Department to a large number of the items of expenditure thus reported by Ramsey, varying in amount from 5 cents to over $100 and aggregating $688.11, to recover which sum this action was brought. The cause being at issue, and it appearing that its trial would require the examination of numerous items of account, by agreement of counsel it was referred, the order of reference being as follows:

'By agreement of counsel for the respective parties herein, it is ordered that this cause be and the same is hereby referred to C.C. Cavanah, Esq., to take the testimony herein, and report findings of fact and conclusions of law to the court in said cause, with all convenient speed.'

Thereafter the referee, having taken the evidence, reported to the court his findings of fact and conclusions of law based thereon, awarding to the plaintiff $88.34, and disallowing the balance of the claim. In form, the findings are separately stated, and they respond to all of the issues. Upon the coming in of the referee's report, counsel for the plaintiff filed what is denominated an 'Exception to Findings of Referee,' by which objection is made to the sixth and seventh findings of fact (which cover the vital issues presented by the pleadings), 'upon the ground that said findings and each of them, and each and every item allowed to the defendants therein as a proper charge, are unsupported by the evidence and are contrary to law. ' At the same time counsel for plaintiff filed what is denominated a 'Notice of Motion for Judgment,' by which the plaintiff gave to the defendant notice that upon a certain day the plaintiff would move the court to enter judgment 'in favor of the plaintiff, in accordance with the prayer of its complaint, upon the evidence heretofore taken before C.C. Cavanah, Esq., referee in said cause, anything in the report of said referee to the contrary notwithstanding. ' The exceptions and the motion for judgment have been argued and submitted together.

The simple question presented by the motion is whether or not, when, upon agreement of the parties, a rule has been made by the court in an action at law, referring a cause, with instructions and authority to the referee to make and report findings of fact and conclusions of law, his findings may be disregarded, and the judge of the court may, upon the evidence taken by the referee, make findings and enter judgment accordingly. By the Constitution (amendment 7) it is provided that:

'In suits at common law, where the value in controversy shall exceed $20.00, the right of trial by jury shall be preserved.'

Section 648, Rev. St. U.S. (U.S. Comp. St. 1901, p. 525), provides that:

'The trial of issues of fact in the circuit court shall be by jury, except in cases of equity and of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy and by the next section.'

In the next section (649) it is provided that:

'Issues of fact in civil cases in any circuit court may be tried and determined by the court without the intervention of a jury whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury.'

In such case the finding of the court upon the facts shall have the same effect as the verdict of a jury. The trial of issues of fact by the court without a jury was unknown to the common law. Such questions were exclusively for the jury, and in case questions of fact were submitted to the judge without a jury, by agreement of the parties, it was held that, in determining such issues, the judge was not acting in any official capacity, but as an arbitrator. Campbell v. Boyreau, 21 How. 223, 16 L.Ed. 96. Manifestly, therefore, the judge has no power, without the consent of the parties, to determine issues of fact, and only by virtue of the provisions of section 649 does the judge's decision upon a question of fact become a judicial act. This action, therefore, being one at law, the parties were entitled to have the issues of fact submitted to a jury. This right they might waive, and they might agree that such questions be determined by the judge of the court, or by a referee. The record discloses a waiver of jury, upon the condition, however, that the facts be found by a referee. There was no consent that such issues be submitted to the determination of the judge of the court, and the court is powerless to impose upon the parties, against their will such mode of trial.

In Dundee Mortgage Company v. Hughes, 124 U.S. 157, 8 Sup.Ct. 377, 31 L.Ed. 357. the court says:

'It is undoubtedly true that under a common-law reference the court has no power to modify or to vary the report of a referee as to matters of fact. Its only authority is to confirm or reject, and if the report be set aside the cause stands for trial precisely the same as if it had never been referred.'

In that case, as in this, there was no written stipulation filed waiving a jury and consenting to the reference, but there, as here, an order of reference was made by consent of counsel in open court. The referee filed findings of fact and conclusions of law, to which both parties excepted. The findings of the referee were set aside and new findings were made by the court, upon which judgment was entered. It is true that the judgment of the Circuit Court was affirmed, but the Supreme Court declined to review its action in substituting findings of its own in place of those of the referee, for the reason that no objection was made in the trial court, and that no exception was seasonably taken. The court says:

'Had the attention of the court been called to the exact condition of the record, the error would probably have been avoided by the filing of the necessary stipulation in writing, or in some other way.'

It is impliedly held that if a proper stipulation in writing had been made and filed, waiving a jury and consenting to a reference under the Oregon Code, it would have been competent for the Circuit Court not only to set aside the referee's report for good cause, but to make findings of its own, and enter judgment accordingly; but section 229 of the Oregon Code was, in part, as follows:

'The court may affirm or set aside the report, either in whole or in part. If it affirm the report it shall give judgment accordingly. If the report shall be set aside either in whole or in part the court may make another order of reference as to all or so much of the report as may be set aside, to the original referees, or others; or it may find the facts and determine the law itself and give judgment accordingly.'

If, therefore, the parties had filed such a stipulation there would have been a consent upon their part that the judge of the court, upon certain contingencies, might determine the issues of fact as well as decide the questions of law. After adverting to the fact that no objection was made in the court below, the Supreme Court says:

'The court proceeded, evidently in accordance with the understanding of the parties, to make new findings precisely as it would if the order of reference had been actually under the Code upon a consent in writing.'

If it be assumed that the consent of the parties and the order of the court now under consideration were made with reference to the Idaho statutes relative to trial by referees, it is to be observed that they do not contain any provision similar to that of the Oregon Code above quoted. Nor do I think that even in the Idaho state courts, when such a reference as is now under consideration is made, can the judge, upon the rejection of the findings of a referee, in an action at law, make findings of his own, and enter judgment thereon, over the objection of one of the parties to the proceeding. Pratalongo v. Larco, 47 Cal. 378; Walker v. Campbell, 3 Hasb. (Idaho) 13, 26 P. 123; Robinson v. Nelson, 4 Idaho, 567, 43 P. 64. My conclusion is that, without the consent of the parties to an action at law, the judge of the court has no authority to determine the issues of fact, and that neither under the statutes of the United States nor the statutes of Idaho is such consent implied in a mere agreement that the cause be referred to a referee to report findings of fact and conclusions of law.

The other question is whether, under the order of reference, the court may, upon the plaintiff's 'exception' to the findings of the referee, review the evidence for the purpose of determining whether the findings of fact are supported by the evidence. The question is not, whether the court may in any manner review the evidence for that purpose but whether such a review may be had upon exceptions to the referee's report. It is contended by counsel for the defendants that, the parties having consented, with the approval of the court, the cause be tried by a referee, the court is without power to inquire into the sufficiency of the evidence to support the findings of...