Reference of divorce case — Practice.
When a libel for divorce has been sent to a referee, under the act of 1874, neither party is entitled, as matter of legal right, to a trial of the facts de novo by the court upon the coming in of the report.
FROM MERRIMACK CIRCUIT COURT.
LADD, J.
I understand from the case that the plaintiff claimed, as matter of legal right, that she should be permitted to go into a full trial, before the judge, of the facts found and reported by the referee; and that claim is one which I think cannot be sustained. Undoubtedly the court could not abdicate a judicial function by refusing to look at the report, or consider any question of law, fact, or practice that might be raised upon it; but that was not what was done. The cause had been sent to a referee in the exercise of an unquestionable authority conferred by the act of 1874. The facts had been tried, and a report returned: the effect to be given to the report, in reference to matters of fact found by it, was a thing to be determined by the court in the exercise of a sound discretion. Under the statute, I think it stands very much like the report of a master in equity proceedings. My conclusion is, that the exception should be overruled.
CUSHING, C. J.
I am not aware that the statute under which this proceeding was sent to a referee makes any provision for a trial of the facts by the court on the coming in of the report. My understanding is, that this case is not one of those in which the parties have a right to a trial by jury. If it were such, the party might have a right under the statute to a trial by jury, but not to a trial by the court. Such trial, however, is not claimed. If the case be one, as I understand it to be, in which there is not by law a right to a trial by jury the statute seems to be peremptory, requiring that the court shall either revise, or recommit, or render judgment on the report. I think, therefore, that the libellant's motion was rightly denied, and the exception must be overruled.
SMITH, J., concurred.
Exception overruled.