Sweigard v. Wilson , 106 Pa. 207 ( 1884 )

Mr. Justice Clark

delivered the opinion of the court,

This cause was submitted by an agreement of the parties, to a referee, learned in law, under the provisions of the Act of litli May, 1874, Pamph. Laws, page 166; that Act provides that such referee shall in all things pertaining to the trial and decision of the case have the powers and perform the duties that would belong to the court, under a like submission. The mode of procedure to be pursued, and the duties which devolve upon the court under such submission are regulated and prescribed by the Act of 22nd April, 1874, Pamph. Laws p. 109.

It is the duty of the referee, under this Act, to reduce his decision to writing, “ stating separately and distinctly the facts found, the answers to any points submitted in writing by counsel and the conclusions of law.” In Butterfield v. Lathrop, 21 P. F. S., 229, which was a reference under a similar statute, it was held, that the finding must contain the facts as fully as a special verdict, and we regard this as the proper rule. A special verdict is one by which the facts of the case are put on the record and the law is submitted to the judges, 2 Bouv., 780 ; it follows, that the judgment is but the conclusion of the law upon the facts thus found. As the judgment, entered upon the report of a referee, must be the logical legal conclusion, drawn from the facts which he puts upon record, the finding must exhibit such degree of certainty and fullness, as will of itself justify the judgment; what is not found is taken not to exist and this court will not infer a fact not found; nothing should be left for inference, except that which must necessarily be inferred.

The statute requires that the decision shall be stated in form; that the facts, the answers to points and the conclusions of law “ shall be separately and distinctly stated.” The question involved thus becomes the convenient subject of review, either upon appeal or writ of error as these respective remedies may apply. We cannot however review the finding of the referee upon the facts; that is as conclusive upon us as the verdict of .a jury. The simple question for determination of this court, in each case is whether or not, the judgment entered is the legal consequence of the referee’s finding. The mode of procedure introduced by these Acts of 1874, is comparatively new; it has not yet been fully established in general practice throughout the state, and it becomes important, therefore, that the rules respecting it should be prescribed and followed. We are of opinion that the report of the learned referee fails to exhibit the formal requirements of the statute.

The suit is brought by Thomas H. Wilson against Isaac A. Sweigard, to recover for money loaned or advanced to the amount of 1800. The defendant denied the loan or advance of 'money to him by the plaintiff; but, admitting the receipt of the money, alleged that it was a contribution by the plaintiff, to a joint adventure on speculation in stocks, purchased upon margin, which resulted in a loss. The distinct question of fact upon which the case hinged was, whether or not, the money thus advanced was a loan or a contribution.

The business, whether individual or joint, was conducted by P. S. Peterson & Co., stock brokers, doing business in the city of Philadelphia. The learned referee does find that, from the books of this firm, the inference can only be made, that the purchase of the stocks was for the individual account of Sweigard; that this inference is corroborated by certain letters in evidence and incorporated in his report, and that these letters indicate no interest existing in Wilson. But the books of P. S. Peterson & Co. and the letters referred to, constitute only a small part of the testimony in the cause. Both of the parties to the suit were examined as witnesses ; Freas Wilt and Thomas B. Suplee were also called; each and all of these testified at length upon the material facts of the case. The inferences from the books of P. S. Peterson & Go., and from the letters, are drawn from a part of the testimony only; no distinct conclusion of fact is stated as the result of the whole evidence, upon which, as upon a special verdict, the judgment can be supported. The testimony is contradictory and conflicting, but we cannot consider it; with this conflict we have nothing to do; what the truth of the transaction is was for the determination of the referee, and his findings and conclusions should bo separately and distinctly stated.

The statute of 22d April, 1874, further requires that the referee’s report, when reduced to form, shall, within a time designated, be filed in the office of the Prothonotary or clerk of the proper court, who shall give notice thereof; if no exceptions are filed within thirty days thereafter, judgment shall be entered thereon; if exceptions are filed, the tribunal which tried the cause maj'-, either direct judgment to be entered, according to the decision previously filed, or make such modifications as shall be deemed just and right. In the present case notice was given to the parties, by the referee himself, thirty days before the filing of the report, a copy of which report accompanied the notice, and the exceptions filed with the referee were argued before him. The parties were perhaps not bound to act upon the notice of the referee, but they did; they proceeded in this form apparently by consent, certainly without objection ; they had all the advantages by exception, re-argument and reconsideration, which they could have had if the letter of the law had been observed, and for this irregularity rve would certainly hesitate to reverse. But, as the judgment must be reversed on other grounds, it is proper that we should refer to the plain and obvious provisions of the statute in this respect. The referee, “ in all things pertaining to the trial and decision,” is required “ to perform all the duties that would belong to the court under a like submission.” It is the plain dutjr of the court, and therefore of the referee, to file his report when made, in the Prothonotary’s office, there and thereafter to be proceeded with as directed by law. Many reasons might be assigned for this provision, but it is quite sufficient here to say that the statute requires it, and it is in all such cases a safer and better policy to pursue the plain direction of the statute, than to embarrass its operation by any needless departure therefrom. This is the view expressed in the ease of Marr v. Marr, 7 Out., 463, and we regard it as the correct one. The Prothonotary’s office is a public office, the records there contained are always accessible to those interested in them ; the report when filed becomes part of the record, it is then open to the inspection of all concerned, copies may be obtained and further proceedings had, as directed by law. The office or place of business of a referee may not always be open ; professional employment may render access to the report impracticable and unsatisfactory; these and many other considerations satisfy us that the mode of procedure pointed out by the statute, is the better one and should be pursued. The decision in the case of Marr v. Marr, supra, was not known to the profession when this cause was before the referee; the practice was not then established, and the learned referee, in the press of his professional engagements, perhaps failed to observe the peculiar provisions of the statute.

For the reasons stated the judgment is reversed and the cause is remitted to the court below for further proceedings before the referee.