Practice, Civil, Auditor's report. The denial of a motion, to recommit an auditor's report with instructions to the auditor to set out in his report the facts and evidence on which he based his findings and rulings contrary to those requested by the party presenting the motion, is wholly within the discretion of the judge to whom the motion is addressed, and is not subject to exception or open to revision upon appeal.
In refusing to entertain an exception to the denial of a motion to recommit an auditor's report, this court called attention to the fact, that here, as in Tobin v. Kells, 207 Mass. 304, even if the court had had authority to review the exercise of discretion by the trial judge, there was nothing in the record to show what facts, if any, were agreed upon or proved at the hearing of the motion which was denied.
R.L.c. 165, § 55, makes an auditor's report prima facie evidence, but this leaves the party against whom his finding was made full opportunity to introduce at the trial evidence to disprove the correctness of such finding and also to raise any question of law on which he thinks that the ruling of the auditor was wrong.
SHELDON, J.
The motion to recommit the auditor's report was addressed wholly to the discretion of the justice before whom it was heard. This has been so recently decided that it is unnecessary to do more than refer to the case of Tobin v. Kells, 207 Mass. 304. The renewal of this motion before the judge who tried the case without a jury comes under the same rule. His action was not a subject of exception. And here, as in the case cited, we do not know what facts, if any, were agreed or proved at the hearing of either of these motions.
The auditor's report was prima facie evidence (R.L.c. 165, § 55), and justified the finding made at the trial. If the defendant thought that any of the findings of fact or rulings of law made by the auditor were wrong, he had full opportunity to put in evidence of the facts and raise the questions at law at the trial. See Fisher v. Doe, 204 Mass. 34.
Exceptions overruled and orders affirmed.