| Correct statement. |
JAS. D. GALBRAITH, |
The plaintiffs offered evidence before the referee that the witness had dealings with plaintiffs, and had accounts in their books, and also that their books were honest, which was properly admitted. ( Lowell v. Southerland, 11 Wend. 568; 2 Owen's Treatise, 955 to 958; Vashbury v. Thayer, 12 Johns. 461; Sickles v. Mather, 20 Wend. 72.) The books were offered in evidence and received without objection; whether there was sufficient evidence to justify their admission, would have been passed upon by the referee if objection had been made; that is a question this Court are not called upon to decide. ( Lowell v. Southerland, 11 Wend. 568.) After the books were received, and defendant's counsel had examined the witness as to entries in the books, it was proper for plaintiffs to inquire from the same books whether the charges against defendant were too high. (2 Owen's Treatise, 958.)
OPINION
HEYDENFELDT, Justice.
We decided in Tyson v. Wells, 2 Cal. 122, and Skinner, that the report of a referee under the statute, had the same legal effect as the award of an arbitrator.
It therefore follows that the referee in this suit had no right to bring in and file an additional or amended report; and the case must be reviewed with reference to the original report alone.
By that report, it does not appear that exceptions of any validity were taken before the referee, but the report was not made immediately after the close of the testimony, and consequently by the 191st section of the Practice Act, it is deemed as excepted to.
According to the rule settled in Muldrow v. Norris, 2 Cal. 74, the decision of the referee can only be set aside on account of fraud or gross error of law or fact apparent upon its face.
In this case the report discloses that the referee allowed a claim against the defendant, the only evidence of which was a check drawn in his favor by the plaintiffs. This was certainly a great error, because the legal presumption is, that the check was drawn in payment of so much money due to the defendant. Considering the amount in controversy, this mistake is gross enough to set aside the report, and renders it unnecessary to examine the other matter of account.
The appellee's counsel insists that the defendant having failed to object to the rendition of the judgment in the District Court, has waived his right to have his exceptions to the report reviewed by this Court. Such is not the law. Upon the report of a referee under the statute, if it contain sufficient on which to base a judgment, it is the duty of the Court below to enter judgment in accordance with the report, as far as it concerns the matters referred, and it has no right to entertain any objections whatever. After the rendition of the judgment, the Court may award a new trial, and set aside the report for any of the reasons which would impel a court of competent jurisdiction to set aside the award of an arbitrator, and for no other.
Judgment reversed, and remanded, with costs.