Vogt v. Butler

• Decision Date: 02 June 1891
• Citation: 16 S.W. 512,105 Mo. 479
• Parties: VOGT v. BUTLER.
• Court: Missouri Supreme Court

16 S.W. 512

105 Mo. 479

VOGT v. BUTLER.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

OATH OF REFEREE — ACTION ON NOTE — EVIDENCE — APPEAL.

1. Where a referee is sworn in open court in the presence of the attorneys for both parties, who appear before him and go to trial without objection, his report cannot be set aside because he did not take and subscribe an oath as required by Rev. St. Mo. § 2143.

2. Where it is alleged that the second of two notes in suit was given in payment of the first, the financial condition of the payee before the dates of the notes is relevant for the purpose of showing that he never had the amount of money represented by the two notes, and therefore could not have loaned it.

3. In an action at law the finding of a referee is equivalent to a special verdict, and will not be disturbed if there is any substantial evidence to support it.

Error to circuit court, St. Charles county; W. W. EDWARDS, Judge.

Action against P. N. Butler, administrator of M. D. Rees, to recover on a note made by deceased.

J. C. Kiskaddon, for plaintiff in error. John W. Booth, for defendant in error.

GANTT, P. J.

This is an action commenced in circuit court, Franklin county, and taken on change of venue to St. Charles county. The petition contained two counts, — the first on a note dated April 2, 1878, payable one day after date to order Henry Vogt, for $3,800, with 6 per cent. interest since April, 1880. The second count is on a note of date April 1, 1880, for $4,000, alleging that the balance due is $2,481.75, with interest thereon from October 26, 1886. Rees' answer to the first count of the petition avers that on 1st day of April, 1880, there was due on the first note $3,800 and one year's interest, amounting in the aggregate to $4,028; that thereupon Rees paid Vogt $28, and for the balance of $4,000 executed the note sued on in second count; and that thereby said first note was paid. The answer then proceeds to set up various payments on said second count. To this a reply was filed, denying the answer. On the issues as thus made the case was tried on September 17, 1888. The court, with the consent of the parties, referred the matters in issue in the cause to R. F. Luckett, and thereupon the oath required by statute was by the judge of the court administered to the referee, and forthwith the referee proceeded on the same day to hear and take testimony adduced before him by the parties; both parties appearing and participating in the trial of the cause before the referee December 11, 1888, said referee filed his report, by which report it appeared that the referee found that the note for $4,000 was executed and delivered by Rees to Vogt in full satisfaction of the $3,800 note, and that the balance due plaintiff on the $4,000 note was the sum of $99.74. The report of the referee, as originally filed, did not mention the fact of the referee having been sworn. Vogt excepted to the report of the referee on the alleged ground that the referee erred in admitting improper evidence, and that his finding was against the weight of the evidences and contrary to the law applicable to the case, and on the ground that it did not appear by the report, nor in any paper or document filed therewith, that the referee took and subscribed an oath faithfully and fairly to hear and examine the cause, and to render a just, impartial, and true report, according to the best of his understanding. These exceptions were filed on the day the report of the referee was filed, and with said exceptions the following affidavit was filed: "J. C. Kiskaddon, being duly sworn, upon his oath states that he is the attorney for plaintiff in the above-entitled cause; that he supposed, and is under the impression that he was informed, that the referee had taken the oath as required by statute; that he can find no such oath on file, or returned with papers; that he did not know of such omission until after the filing of the report, when an examination of the papers on file and in the cause, as well as with the report, first informed affiant of said omission." On the filing of said exceptions and affidavit, defendant asked of the court leave for the referee to amend his report by interlining therein the words, "That having first taken an oath in open court before Hon. W. W. EDWARDS, judge thereof, faithfully and fairly to hear and examine the cause, and make a just, impartial, and true report, according to the best of my understanding." And in support of said application for leave to amend defendant filed an affidavit of said referee to the...