of law in a decision are not properly drawn from the facts found, this is no ground for reversing the judgment if the ultimate conclusion upon which the judgment rests is not erroneous in view of the facts found": Davis v. Baugh, 59 Id. 576. But indefinite and uncertain findings will not support a judgment: Paige v. Rocky Ford Co. & I. Co., 4 West Coast Rep. 522. Separate statement of findings of fact and conclusions of law is necessary: Emeric v. Alvarado, 64 Cal. 529, 603; Figg v. Mayo, 39 Id. 265; Breeze v. Doyle, 19 Id. 101; Lucas v. San Francisco, 28 Id. 576; Pralus v. Pacific G. & S. M. Co., 35 Id. 35. A finding of fact and conclusion of law are 'separately stated" when the effect of each upon the final judgment is distinct and severable from that of the other: Weissman v. Russell, 10 Or. 73. But when the facts are so obscurely found or are so blended with legal conclusions as to render it doubtful Oct. 11, 1862, whether the facts are only hypotheti- $216. cally stated, the supreme court will disregard it as a finding of fact: Figg v. Mayo, 39 Cal. 265. Conflicting evidence. - Where the evidence is conflicting, the findings will not be disturbed: Williams v. Gallick, 2 West Coast Rep. 537 (Or.); Emeric v. Alvarado, 64 Cal. 529; Sweetzer v. Dobbins, 3 West Coast Rep. 616; Kelly v. Fitzele, 2 Id. 132; Rankin v. Thompson, 2 Id. 873 (Col.); Baker v. McAllister, 2 Id. 690 (Wash.); Coffman v. Brown, 2 Id. 98 (Col.); Halleck v. Brisnahen, 2 Id. 69 (Wy.). Opinion of court. The supreme court are always glad to have the opinion of the court below, but it should be entirely separate from the findings of facts and conclusions of law: Hidden v. Jordan, 28 Cal. 305; Bryan v. Maume, 28 Id. 244; Jones v. Block, 30 Id. 229; McClory v. McClory, 38 Id. 575. § 217. Order of pro § 220. [217.] The order of proceedings on a trial by Oct. 11, 1862, the court shall be the same as provided in trials by jury. The finding of the court upon the facts shall be deemed ceedings a verdict, and may be set aside in the same manner and for the same reasons, as far as applicable, and a new trial 6 Or. 385. granted. Trials by jury: See the three next preceding titles. Verdict: See the next preceding title. The findings of the court upon the facts are regarded as a verdict, and may be set aside as such and a new trial granted: Hallock v. Portland, 8 Or. 29. TITLE VI. TRIAL BY REFEREES. The trial of any issue may be referred by consent. 5 Or. 355. 20 Or. 536. § 221. § 222. § 223. Number of referees, and how chosen. $ 225. § 226. Right and mode of challenge to referees when chosen by the court. $218. § 221. [218.] All or any of the issues in the action, Oct. 11, 1862, whether of fact or law, or both, may be referred upon Trial of issue the written consent of the parties. may be referred. 7 Or. 158. Oct. 11, 1862, § 222. [219.] When the parties do not consent, the court may, upon the application of either, or of its own dered by court. motion, direct a reference in the following cases: Reference or 17 Or. 634. Oct. 11, 1862, 220. Number of referees. Oct. 11, 1862, 221. 1. When the trial of an issue of fact shall require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or, 2. When the taking of an account shall be necessary for the information of the court, before judgment upon an issue of law, or for carrying a judgment or order into effect; or, 3. When a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action; or, 4. When it is necessary for the information of the court in a special proceeding. Compulsory reference.- A compulsory reference is not a matter of right: Wheeler v. Falconer, 7 Robt. 45. It is said that when the right to refer depends on the examination of an account, the court has no power to refer a whole issue unless the account arises directly and not collaterally or incidentally: Kain v. Delano, 11 Abb. Pr., N. S., 29; Williams v. Benton, 24 Cal. 425; and see Tribou v. Strowbridge, 7 Or. 156. The judge may state the account himself, but the better practice is to refer: Hidden v. Jordan, 28 Cal. 308. The referee must take the account on principles previously laid down by the court: Smith v. Walker, 38 Id. 388. A referee appointed to ascertain and state an account between partners should ascertain what the real and actual profits were, and not what they ought or might have been: Boire v. McGinn, 8 Or. 466. The order of reference cannot go beyond the pleadings: Branger v. Chevalier, 9 Cal. 361. The court can order a reference to ascertain the damages sustained by reason of an injunction. The undertaking is a consent by the plaintiff: Russell v. Elliott, 2 Id. 247. It was held that an action for work done-plea, payment by promissory note; replication, fraud in the execution of the note-could not be compulsorily referred: Seaman v. Mariani, 1 Id. 336. Neither can an ordinary action at law for the recovery of a debt, even though it involve the examination of a long account: Grimm v. Norris, 19 Id. 141. The application should not be made until the cause is ready for trial: Hawkins v. Avery, 32 Barb. 551; and should be by motion on affidavit: Goodyear v. Brooks, 4 Robt. 682; unless the court refers of its own motion: Barron v. Sandford, 14 How. Pr. 443. § 223. [220.] A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties. If the parties do not agree, the court or judge may appoint one or more, not exceeding three. § 224. [221.] When the appointment of referees is made by the court or judge, each referee shall be,— Oct. 11, 1862, § 221. 1. Qualified as a juror as provided by statute; 2. Competent as a juror between the parties. Qualifications and competency of jurors: See sections 947 [918], post, and compeand 186 [184], ante. Qualifications tency of referees. 222. Challenge to § 225. [222.] When the referees are chosen by the oct. 11, 1862, court, each party shall have the same right of challenge, as to such referees, to be made and determined in the referees. same manner and with like effect as in the formation of juries, except that neither party shall be entitled to a peremptory challenge. Challenge to jurors: See ante, §§ 183 [181] et seq. § 226. [223.] Subject to the limitations and direc- Oct. 11, 1862, § 223. tions prescribed in the order of reference, the trial by Trial by referees shall be conducted in the same manner as a trial referees. by the court. They shall have the same power to grant adjournments, administer oaths, to preserve order and punish all violations thereof upon such trial, and to compel the attendance of witnesses, and to punish them for non-attendance or refusal to be sworn or testify as is possessed by the court. Trial by referee. -It is the intention of the statute that trials before a referee proceed in the same manner as trials before a court, and that referees be clothed with the same authority in directing the manner of a trial, and in deciding motions which may arise during its progress: Stinson v. Estes, 3 Or. 521; Goodrich v. Mayor, 5 Cal. 431; Phelps v. Peabody, 7 Id. 53. powers of a judge in relation to the trial, and may therefore grant a nonsuit, and report a judgment to that effect: Plant v. Fleming, 20 Id. 93. After the case is submitted, the referee cannot allow plaintiff to introduce an amended complaint and compel defendant to file an amended answer: De la Riva v. Berryesa, 2 Id. 197. Exercising a sound discretion, he may open the case after it has been closed, A referee is an officer of the court. and receive further testimony: MaHe is clothed with important powers, riziou v. Pioche, 10 Id. 545. When and some weight must be given to his an original instrument is offered in certificate, and some discretion al- evidence before a referee, and he lowed him in the manner of taking makes a certified copy thereof, and testimony and returning exhibits: files and returns the certified copy Bohlman v. Coffin, 4 Or. 313. He as an exhibit, such exhibit will not must adhere to the rules of evi- be disregarded, except in peculiar dence: De la Riva v. Berryesa, 2 cases: Bohlman v. Coffin, 4 Or. 313. Cal. 197. He can exercise all the § 224. § 227. [224.] The report of the referees shall state the oct. 11, 1862, facts found, and when the order of reference includes an Referee's issue of law, it shall state the conclusions of law sepa- report. rately from the facts. The referees shall file with their Oct. 11, 1862, $221. Referee's report. 3 Or. 521. 6 Or. 385. 10 Or. 66. Oct. 11, 1862, 225. Motion to set aside report. 11 Or. 529. Oct. 11, 1862, 226. Proceedings thereon. 19 0..42. report the evidence received upon the trial. If evidence offered by either party shall not be admitted on the trial, and the party offering the same except to the decision. rejecting such evidence at the time, the exception shall be noted by the referees, and they shall take and receive such testimony, and file it with the report. Whatever judgment the court may give upon the report, it shall, when it appears that such evidence was frivolous or inadmissible, require the party at whose instance it was taken and reported to pay all costs and disbursements thereby incurred. Referee's report. The referee cannot file an additional or amended report: Headley v. Reed, 2 Cal. 325. The report should state the facts found and conclusions of law: Lambert v. Smith, 3 Id. 409; it should be like the decision of the court: Hihn v. Peck, 30 Id. 285. It seems that when a jury may return a general verdict, a ref eree may find generally; at all events, it is his duty to report exactly what he is required to report: Connor v. Morris, 23 Id. 451; Hihn v. Peck, 30 Id. 285. A report that the referee is unable from want of evidence to find the value referred to him to determine is equivalent to finding no value whatever: Montifiori v. Engels, 3 Id. 434. § 228. [225.] The report shall be filed with the clerk. If it be filed in term time, either party may within such time as may be prescribed by the rules of the court, or by special order, move to set the same aside or for judgment thereon, or such order or proceeding as the nature of the case may require. If the report be filed in vacation, the like proceedings may be had at the next term following. § 229. [226.] 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 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 is set aside, to the original referees, or others, or it may find the facts and determine the law itself, and give judgment accordingly. Upon a motion to set aside a report, the conclusions thereof shall be deemed and considered as the verdict of a jury. Judgment on referee's report. - Mandamus lies to compel the court to enter judgment on the report of a referee: Russell v. Elliott, 2 Cal. 246. If a report of a referee contain sufficient on which to base a judgment, it is the duty of the court below to enter judgment in accordance with § 233. To be signed by the judge and filed. When exceptions need not be § 227. 1 Or. 122. § 230. [227.] An exception is an objection taken at Oct. 11, 1862, the trial to a decision upon matter of law, whether such Definition of trial be by jury or court, and whether the decision be exception. made during the formation of a jury, or in the admission of evidence, or in the charge to the jury, or at any other 10r. 141. time from the calling of the action for trial to the dering of the verdict or decision. But no exception shall 1 be regarded on a motion for a new trial, or on an appeal, unless the exception be material and affect the substantial rights of the parties. Bills of exceptions. The object of a bill of exceptions is to bring into the record what would not otherwise appear, so as to lay the ground for proceedings in error, and for the information of the appellate court: State v. Drake, 11 Or. 396. Without the bill of exceptions, the supreme court will not notice errors other than those which are disclosed by the face of the record: Scott v. Cook, 1 Or. 24; and see § 233 [230], post. Papers attached to the exception, and referred to therein as "hereinto annexed, marked exhibit A," etc., are sufficiently identified as parts of the bill; and this though the papers are not actually so marked: Oregonian R'y Co. v. Wright, 10 Or. 162. The bill of exception is the proper means to bring in for consideration ren the acts and conduct of the court, but of a motion for a continuance can only 6 Or. 17. or 208. 19 or. 98. 15 Or. 586. |