Warworth v. Birch , 81 Ark. 52 ( 1906 )

Riddick, J.,

(after stating the facts.) This is an appeal by plaintiffs from an order of the chancery court confirming a report of a master appointed to state an account between the plaintiffs and defendants in this case. The report of the master thus confirmed was the second report made by him, exceptions made by plaintiffs to the first report having been sustained and the master ordered to restate the account.

The original decree adjudging the rights of the parties and ordering a reference to a master was made in September, 1903. The master took evidence and filed his report, and on the nth day of June, 1904, the plaintiffs filed their exceptions thereto, and moved to strike 'the report out on the ground that the master had taken depositions and heard the case without notice. After further setting out various specific objections to the report, plaintiffs ended their exceptions with the following words: “Plaintiffs move the court that, for the many errors and insufficiencies mentioned in their exceptions, the master’s report be stricken from the files, and the matter referred with directions to forthwith state a true and accurate account in accordance with the law and instructions of this court.” The court thereupon entered an order sustaining the exceptions generally, and ordered the master to restate the account.

Now, it will be noticed that, although the plaintiffs excepted to the report and moved to strike it out on the ground that it was based on depositions taken without notice, they do not ask that the master be ordered-to retake the depositions or to take further’ evidence, but only ask that the master be required to forthwith state a true and accurate account. For this reason, or because the court thought that the objection that the depositions were taken without notice was not well taken, or that the account could be restated on the depositions taken before the original decree, the fcourt did not direct the master to hear further evidence, but referred the account to the master for restatement. No objections were made to this order of the court, and no appeal taken by plaintiffs, either from it or the original decree. But, on the filing of the restated 'account, plaintiffs appeared by their attorney and excepted thereto, and, to quote the language of their exception, “for cause of exception state as in the original exceptions filed herein to original report, and further that no evidence has been adduced before the master since said original report on which to base a restatement.”

The court overruled these exceptions, and. confirmed the report.

The appeal taken in this case was over a- year after the original decree, and over a year after the judgment of the court ordering a restatement of the account, and those two judgments are not questioned. As the court did not, in ordering the master to restate the account, direct him to take frirther evidence, it was not his duty to do so, and the objection to his second report on that ground can not be sustained. If plaintiffs had desired to produce further evidence before the master, they should have asked a direction to that effect. But, instead of that, they asked the court to order the master to forthwith restate the account, which indicates that they did not consider that further evidence was necessary. 17 Enc. Plead. & Prac. 1073.

The other objection made by plaintiffs to this account can not be sustained, for the reason that it is not specific enough. The language of it is that they except as stated in their exceptions to the original report. But the two reports were not the same, for the master in the second report made material changes in his findings, sustaining some of the exceptions filed by plaintiffs to his first report. If any of the findings of the master in his second report were incorrect or not in compliance with the directions of the court, they should have been pointed out by a specific objec‘tion in writing, for the statute so requires. Kirby’s Digest, § § 6336-6340. It would be obviously unfair to the chancellor to compel him to entertain an exception made in this form and to look through the long list of exceptions filed to the first report and compare them with the last report in order to ascertain the objections of plaintiffs to the last report. We must therefore hold that this exception was too indefinite to justify us in reviewing the order of the chancellor in overruling it and confirming this second report of the master. 17 Enc. Plead. & Prac. 1049; King v. Burdett, 44 W. Va. 561; Findley v. Findley, 42 W. Va. 372.

Eor the reasons stated the judgment of the chancellor is affirmed.