Rundell v. Box , 89 F. Supp. 166 ( 1948 )

SYMES, District Judge.

On January 26, 1948, pursuant to Rule 53, Federal Rules of Civil Procedure, 28 U.S.C.A., and without objection, this matter was referred to John E. Gorsuch of Denver as Master, to receive evidence and make findings on the issues raised in the case, and report to the court. We have his report before us filed February 28, 1948, indicating that he heard the testimony of nearly 40 witnesses. The transcript -consists of 695 pages of testimony.

A motion to set aside said report of the Special Master and objections thereto have been filed by the defendant W. L. Box as of March 11, 1948. These objections and this motion have been argued in court, briefs filed, and the record examined and considered by..the court.

The record indicates that the Master performed his duties conscientiously. The discussion of the facts is clear, he has applied the proper rules of law thereto.

The matter was a non-jury action. Subdivision (e) (2) of Rule 53 provides: “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erx'oneous.”

This we do, and being in agreement with the law and facts as set forth in the report we find no reason to interfere with the findings of fact and conclusions of law, which the court adopts without modification.

The parties may prepare and draw up a proper form of judgment and submit the same to the Clerk.

So ordered.

Judgment

The above-entitled matter coming on for hearing on this 23d day of April, A. D. 1948, upon the Special Master’s Findings of Fact and Conclusions of Law, and the Order of Court of April 20, 1948, affirming and adopting said Findings and Conclu-tions;

Now, therefore, it is hereby ordered, adjudged and decreed that Judgment be and hereby is entered:

1. In favor of the defendant, Douglas A. Cross, and against the defendant, W. L. Box, in the amount of costs herein expended by the said defendant Cross, and that the Clerk of this Court be and hereby is directed to pay to the said defendant, Douglas A. Cross, the sum of $250, heretofore deposited with this Court by the said defendant Cross as costs of reference.

2. That the plaintiff has deposited $500 on costs of reference and the Clerk of this Court shall return to plaintiff the $27.25 unused costs of reference, and the plaintiff shall have the balance thereof of $472.75, taxed as part of plaintiff’s costs of suit. Plaintiff, Carl B. Rundell, shall also have judgment against the defendant, W. L. Box, in the principal sum of $4,140.00, together with interest on said sum from June 24, 1946 to date in the sum of $454.-71, together with plaintiff’s costs of suit to be taxed by the Clerk of this Court.