Fairbank v. Newton , 46 Wis. 644 ( 1879 )

Ryan, O. J".

When the report of a referee, to whom a cause has been sent for trial, comes in, the report, of itself, entitles neither party to judgment, but either or both parties may move to set it aside or confirm it. Either or both parties may move for judgment upon it, as upon a special verdict. Rut a party objecting to the referee’s findings of fact, must file his written exceptions to the findings. It is the duty of the circuit court thereupon, before judgment, to hear the parties, and to malie an order sustaining or overruling the exceptions, and confirming, setting aside or modifying the report. Dinsmore v. Smith, 17 Wis., 20; Jenkins v. Esterly, 22 Wis., 128; Gilbank v. Stephenson, 30 Wis., 155; Riley v. Mitchell, 37 Wis., 612; Yates v. Shepardson, 39 Wis., 173; Cairns v. O' Bleness, 40 Wis., 469; M. I. Works Co. v. Ketchum, 44 Wis., 126; McDonnell v. Schricker, id., 327; Thornton v. Eaton, 45 Wis., 618.

In this case, the appellant filed several exceptions to the report of the referee; and the respondent moved to confirm the report and for judgment. But it does not appear by .the record that the court below passed upon the exceptions, or upon the motion to confirm. There is a recital in the judgment of the motion to confirm, hut not of the exceptions. The judgment does not overrule the exceptions or confirm the report. After the recital, it is in form a judgment for the amount reported by the referee, without reference to the report.

As the record stands, this court is powerless to consider the appellant’s exceptions to the report. The judgment appears to have been premature, to say the least. Judgment could not properly be rendered on the report before the exceptions had been overruled and the report confirmed.

By the Gov/rt. — The judgment is reversed, and the cause remanded to the court below for further proceedings on the report of the referee.