Johnston v. Pump Co.

the act was dealing with both classes of cases (those theretofore cognizable at law, and those theretofore cognizable in equity) it can easily be seen how two provisions were made when one might have answered. But we shall not burden this opinion with Section 5, so much relied upon as the basis of the claim that we must review the facts as in equity. It was of short life. It blossomed in the morning and died with the setting of the sun. It hardly made a ripple on the flowing stream.

Passing now from the Statutes of 1845 to the Statutes of 1855, and passing in dignified and quiet respect over the dead and mouldering body of the said Section 5, p. 91, Laws of 1848-9, let's see the continued status of the law as to the referees. Section 12 of Article 10, Statutes of 1855, vol. 2, p. 1261, reads:

"An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived, or a reference ordered, as hereinafter provided.

Note the fact that these are all actions at law. The "hereinafter provided" is found in Sections 17, 18 and 19, following. Section 17 refers to reference by consent. Section 18, so far as pertinent, reads:

"Where the parties do not so consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: First, Where 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."

We have above the character of cases in which the reference may be ordered. They are cases at law and cases with long accounts. Now as to the effect of the findings we have to turn to another statute, which deals with the subject.

Section 27 of Chapter 7 (Statutes of 1855, vol. I, p. 199) reads: "The referee or referees, appointed in

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pursuance of any order of reference, shall proceed with diligence to hear and determine the matter in controversy."

Section 42 of the same chapter reads: "If exceptions are allowed, the matter may again be referred, with instructions, if necessary; but, if the report is confirmed by the court, judgment shall be rendered thereon, in the same manner and with like effect as upon a special verdict."

These laws remained intact in the General Statutes of 1865. [Vide Sections 12, 17, 18 and 19, Chapter 169, General Statutes 1865, pp. 673 and 674.]

So, too, Section 27, Chapter 198, General Statutes of 1865, p. 773, provides that the referees shall proceed with diligence; and Section 42 on page 775 provides:

"If exceptions are allowed, the matter may be again referred, with instructions, if necessary; but, if the report is confirmed by the court, judgment shall be rendered thereon, in the same manner and with like effect as upon a special verdict."

Going now to the Revised Statutes of 1879 (which are after the adoption of our present Constitution), we find Section 3600, which reads as follows:

"An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived, or a reference ordered, as hereinafter provided."

Note the trial shall be by jury, unless it be waived, or unless a reference is ordered "as hereinafter provided." This "hereinafter provided" is found in Sections 3605 and 3606, following. They read:

"Sec. 3605. All or any of the issues of fact in the action may be referred, upon the written consent of the parties.

"Sec. 3606. Where the parties do not so consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: First, where the trial of an issue of fact shall require the examination of a long account on either side, in

Johnston v. Pump Co.

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."

There is no common construction which would allow us to say that the phrase "or a reference ordered, as hereinafter provided" has reference to Section 3605 only. It clearly refers to both sections, 3605 and 3606. The law starts out with pure law cases in Section 3600, and the reference referred to is specifically in such cases. The next section (Sec. 3601) refers to equity cases, and it says the issues in such cases may be tried by the court, or the court "may refer it, as hereinafter provided." So that both law and equity cases may be referred "as hereinafter provided." That is to say, they may be referred by consent, or they may be referred (in proper conditions) by compulsion.

Section 3623, Revised Statutes of 1879, reads:

"If exceptions are allowed, the matter may again be referred, with instructions, if necessary; but if the report is confirmed by the court, judgment shall be rendered thereon, in the same manner and with like effect as upon a special verdict.”

A special verdict is defined by statute. [Sec. 1988, R. S. 1909.] It has likewise been construed by this court. [Shipp v. Snyder, 121 Mo. 1. c. 161.] A reading of these may obviate some loose thought. recently expressed in this case.

These several sections, supra, run through all of our statutes down to 1909. They are in exactly the same terms. Section 3600 of the Revised Statutes of 1879 is Section 1968 of the Revised Statutes of 1909; Section 3601 of 1879 is Section 1969 of 1909; Section 3605 of 1879 is Section 1995 of 1909; Section 3606 of 1879 is Section 1996 of 1909; and Section 3623 of 1879 is Section 2013 of 1909.

The trouble with our case law is that we have tried, in some cases, and without either rhyme or reason, to limit the phrase "or a reference ordered as hereinafter provided" in Section 1968, Revised Statutes 1909, to

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the consent references mentioned in Section 1995, rather than to give them their full meaning as referring to all references thereinafter named. When the law is traced as I have done, and the relative position of these several sections in the divers statutes is considered, it is easy to discover wherein trouble may have arisen.

Throughout, long and intricate accounts in law cases have been made the subjects of reference, rather than a jury trial; throughout, accounts of this character have not been, by our statutes, recognized as equitable, or as the means of throwing cases into equity. Throughout, the findings of the referee, if approved by the court, has had the effect of a special verdict.

When the divers sections are read together (R. S. 1909, secs. 1968, 1969, 1995, 1996 and 2013) it cannot be said that it is only in consent references that the findings of the referee, when approved by the court, shall have the effect of a special verdict. Said Section 2013 has in view all references.

It is true that there is a footnote on page 199, Revised Statutes 1855, which says that the reference statutes in the Statutes of 1855, on said page 199 and following, were taken from article 4 of the Chancery Code of 1845, and we are cited to this footnote for authority. Writers of footnotes are not always accurate, and this footnote is not sustained by the facts. We bespeak a careful examination of the facts. To begin with, Article 4 of the Chancery Code of 1845 (R. S. 1845, p. 845) had but fourteen short sections, all relative to commissioners in chancery, whilst the reference laws of 1855 (Revised Statutes 1855, p. 199, et seq.) has twenty elaborate sections, some of them quite elaborate, thus showing a re-writing of the law-in other words a new statute. But this is not all. We shall point to the places from which most of the sections of the Statutes of 1855 came. Turning to page 199 of Revised Statutes 1855, under the head of "References" the first section is 27 and we find this section an exact rescript of Section 27, Chapter 9, Revised Statutes of 274 Sup.-28.

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1845, page 126, and is not in the Chancery Code of 1845 at all. The Chancery Code is Chapter 137 of Revised Statutes of 1845, pages 835 to 853. Section 28, page 199, Revised Statutes of 1855, is new. It is not found in Chancery Practice of 1845. Section 29 is likewise new.

Section 30, page 199, Revised Statutes of 1855, is an exact rescript of Section 29, Chapter 9, Revised Statutes of 1845, page 126. Section 31, page 199, Revised Statutes of 1855, is a practical rescript of Section 28, Revised Statutes of 1845, page 126. Section 32, page 199, Revised Statutes of 1855, comes from Section 30, p. 126, and Section 4, p. 122, of Revised Statutes of 1845, and not from the Chancery Act of 1845. Section 33, p. 200, Revised Statutes of 1855 (pertaining to the using of depositions before referees) is a new section in the reference law. There was a section of similar import in the Chancery Act, but not in the same language. Section 34, page 200, Revised Statutes of 1855, is practically a rescript of Section 31, Chapter 9, page 126, Revised Statutes of 1845. Section 35, page 200, Revised Statutes of 1855, is an exact rescript of Section 32, Chapter 9, page 126, Revised Statutes of 1845. Section 36, page 200, Revised Statutes of 1855, is a new section, and is in neither the previous Reference Statutes, nor the Chancery Practice. So likewise are Sections 37 and 38. Section 39, page 200, Revised Statutes 1855, is taken from the Chancery Practice of 1845, and is a rescript of Section 9 of Article 4 of that act, substituting the words "referees" for "commissioners." The section relates only to the saving of exceptions to the competency of witnesses. Section 40, page 201, Revised Statutes of 1855, is new. Section 41, page 201, Revised Statutes of 1855 (pertaining to time when exceptions to report of referees shall be filed), is a practical rescript of Section 11, Article 4, of the Chancery Act of 1845, substituting the word "referees" for "commissioners." Section 42, page 201 of 1855, is a practical rescript of Section 33, Chapter 9,