Wood v. Saginaw Gold Min. & Mill. Co.

• Decision Date: 01 November 1905
• Citation: 105 N.W. 101,20 S.D. 161
• Parties: WOOD v. SAGINAW GOLD MIN. & MILL. CO.
• Court: South Dakota Supreme Court

20 S.D. 161

105 N.W. 101

WOOD

v.SAGINAW GOLD MIN. & MILL. CO.^a1

Supreme Court of South Dakota.

Nov. 1, 1905.

Appeal from Custer County Court.

Action by Buel R. Wood against the Saginaw Gold Mining & Milling Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.W. E. Benedict, Chambers Kellar, and Jas. G. Stanley, for appellant. E. L. Grantham, for respondent.

CORSON, J.

This is an action by the plaintiff to recover of the defendant the sum of $600 alleged to have been paid by the plaintiff for the defendant upon an agreement by the defendant to repay the same. The case was tried by a referee, and his findings and report in favor of the plaintiff were confirmed by the circuit court, and from the judgment entered thereon, and the order denying a new trial, the defendant has appealed. A reversal of the judgment is sought upon three grounds: (1) That the judgment based upon the referee's report was prematurely entered; (2) that the evidence is insufficient to support the findings of the referee and the judgment of the circuit court entered thereon; (3) that no authority is shown in L. B. Woodbury, the president of the defendant company, to bind the defendant by the alleged contract.

It is contended by the appellant that the judgment entered upon the referee's report was prematurely entered, for the reason that eight days had not elapsed after service of a written notice of the filing of the report before the entry of judgment. Notice that judgment would be applied for was given on the 6th day of September, 1904, and the judgment appears by the original record to have been signed by the court on the 14th day of September, but not entered until the 16th day. As there was a conflict between the appellant's abstract and the respondent's additional abstract as to the date of the entry of the judgment, this court was authorized to examine the original record, and by that, as before stated, it appears that the judgment was entered on the 16th and not the 14th, as stated in appellant's abstract. Section 289 of the Code of Civil Procedure provides: “If the report is accepted by the court, judgment may be entered thereon after the expiration of eight days after written notice of the filing of the report served by either party on the adverse attorney.” It will be noticed that the language of the section is: “If the report is accepted, *** judgment may be entered thereon after the expiration of eight days after a written notice of the filing of the report. ***” In this case it will be observed that the notice was served on the 6th day of September, and that the judgment was entered of record on the 16th day of September. Hence the full eight days had expired after the service of notice and before the entry of judgment, and the contention of appellant, therefore, that the judgment was prematurely entered is not sustained by the record.

It is further contended by the appellant that the findings of the referee as accepted and adopted by the court are not sustained by the evidence, and it contends that a different rule should be applied to the findings of a referee from that applied to findings by a court. But, in our view of the law, the rule applicable to findings by a court is applicable to findings made by a referee. For the purposes of the trial the referee takes the place...