Young v. West

• Decision Date: 08 March 1910
• Docket Number: Case Number: 487
• Citation: 25 Okla. 788,108 P. 372,1910 OK 76
• Parties: HERRING & YOUNG v. WEST et al.
• Court: Oklahoma Supreme Court

1910 OK 76

108 P. 372

25 Okla. 788

HERRING & YOUNG v. WEST et al.

Case Number: 487

Supreme Court of Oklahoma

Decided: March 8, 1910

Syllabus

¶0 REFERENCE--Filing Report--Waiver of Objections. Where the report of a referee appointed by the court to report the law and facts in the case is filed after the time set in his order of appointment, and the party against whom judgment is rendered appears in court after the filing thereof and excepts generally to its confirmation, and on the next day flies motion to set aside the order of confirmation for the purpose of excepting thereto which is overruled, and does not raise the question of such report being filed out of time until after judgment is rendered on said report, it will be presumed that such objection is waived.

Error from District Court, Roger Mills County; G. A. Brown, Judge.

Action by Herring & Young against John H. West and Milo Burlingame. Judgment for defendants, and plaintiffs bring error. Affirmed.

R. E. Echols and W. B. Merrill. for plaintiffs in error.--Citing De Long v. Stahl, 13 Kan. 558.

D. W. Tracey, for defendants in error.--Citing: Sieker v. Pracht (Kan.) 18 P. 718; State Bank v. Showers (Kan.) 70 P. 332; Bradford v. Cline, 12 Okla. 339; In re Robinson, 104 N.Y.S. 588; In re Estate of Chambois, 12 P. 775; People v. Temple et al., 37 P. 414; Shore et al. v. Bank, 59 P. 263.

TURNER, J.

¶1 On August 18, 1905, plaintiffs in error, Herring & Young, sued defendants in error, John H. West and Milo Burlingame, in the district court of Roger Mills county. After answer in the nature of a cross-petition and reply thereto filed, the court on April 19, 1906, being of opinion that & trial of the issues necessitated an examination of mutual accounts between the parties, by consent referred the same to a referee both as to law and facts involved, with instructions to make full and final report at the next regular term of the court. Prior thereto, on August 1, 1906, pursuant to said order, both parties announcing ready for trial, the referee proceeded to hear the evidence and arguments of counsel, and on October 29, 1907, the same being the second day of the third term thereafter, filed his report in the cause; two terms of court having intervened since the making of said order. On the same day defendants were given until the 1st day of the next term to file objections to the report. On January 20, 1908, being one of the days of said October term, defendants filed motion to confirm the report of the referee, which was accordingly done on January 27, 1908, same being the first day of the January term of said Court, to which order plaintiff excepted. On the next day by leave plaintiffs filed motion to set aside the order confirming the referee's report for the purpose of excepting thereto, which was overruled, and on February 6, 1908, filed motion to vacate the judgment, on the ground that the same was not filed within the time set by the order, which was also overruled and plaintiffs bring the case here. They assign that the court erred in overruling their motion to vacate the judgment. We do not think so, and are of the opinion that plaintiffs' acts should be declared in effect a consent to the extension of time taken by the referee, or, to put it as stated in Bradford v. Cline, 12 Okla. 339, 72 P. 369, a waiver of the objection that the report was filed out of time. As in that case, so in this, no objection was raised to the report being filed out of time until after judgment was rendered. The court there held such objection waived, and so we do here for the same reason. The court in passing said:

"It is a universal rule, which we think obtains in all courts, that an objection of this kind must be made and the attention of the court challenged to the matter at the time, or it cannot subsequently be a ground or a claim of error. We think there is no doubt that the filing a referee's report within the time required by the order of his appointment is something that the parties to litigations may waive, and, if their conduct is such as to reasonably raise the presumption in the mind of the court that it is waived, they are bound thereby, and estopped from subsequently denying it."

¶2 Such, in effect, was the holding of the court in Seiker v. Pracht, 39 Kan. 521, 18 P. 718. There the report of the referee was made and filed after the intervention of a regular term of court between the order of reference and the filing of the report, without any order having been made at the intervening term continuing the reference or extending the time within which to file the report. Exceptions were filed thereto, but overruled, the report approved, and judgment rendered in favor of Pracht and against Sieker for the amount found due by the referee. A motion for new trial was filed and overruled, and the cause appealed. One of the assignments made in the brief was that the report was not filed at the next term after the appointment of the referee....