ing the said receiver, appointed in the above named cause, to pay over to plaintiffs the one-half of the royalty as received from the A. M. allotment in controversy in the above named suit.

Attorneys for Plaintiffs.

ORDER DIRECTING RECEIVER TO PAY OVER MONEY

(Caption.) Now on this day of, 19-, the same being one of the regular judicial court days of the district court, and the said court. being in session, this cause came on for hearing upon the motion of plaintiffs for an order to require the receiver heretofore appointed in this cause to pay over to plaintiffs one-half of the royalty as received from the interest claimed by the defendants J. D., R. H., and F. E. in the A. M. allotment.

Plaintiffs and defendants appeared in court by their attorneys, except the defendant F. S., who appeared not.

The court, being fully advised in the premises, finds that said motion should be sustained in part.

It is therefore ordered and decreed that said receiver be and he is hereby ordered and directed to pay over to plaintiffs or their attorneys of record as collected 40 per cent. of the royalties and rents so collected from the royalty involved in this suit and heretofore run to and claimed by the defendants J. D., R. H., and F. E. in the A. M. allotment, described as county: Provided however, that the total amount payable to plaintiffs or their attorneys of record under this order shall not exceed the sum of fortyfive hundred dollars ($4,500.00).

in

day of

(Caption.) Now, on this 19-, for good cause shown. it is by the court ordered and decreed that H. H., the receiver heretofore appointed herein, make and file a full and final account and report of all his acts done herein, and of all moneys received by him herein, on or before 19—, and it is further ordered that

said final account and report be and the same is set for hearing on

ORDER APPROVING FINAL ACCOUNT AND DISCHARGING RECEIVER

(Caption.)

Now, on this

day of

19, this cause came on to

9

be heard on the motion to confirm the accounts of receiver, heretofore filed herein, and the court finds said accounts correct, and that said receiver has fully obeyed the orders of the court to him issued, and has duly accounted for and paid over all moneys coming into his hands as such receiver.

It is now, therefore, ordered that all acts and things done by said receiver, as well as his accounts filed herein, be and they hereby are approved and confirmed, and the said is discharged from further duties, liabilities, and responsibilities as receiver herein, and his bond heretofore given in this cause is released and discharged from further liability herein.

- Judge.

ARTICLE IV

REFERENCE

Sections

1909. Reference by consent-Stipulation-Form.

1910.

Upon application or court's motion-Order-Form.

1911. Reference in vacation.

1912. Referee-Appointment, qualification, and compensation-Order-Oath

$ 1909. Reference by consent-Stipulation-Form

"All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties, or upon their oral consent in court, entered upon the journal." 28

23 Rev. Laws 1910, § 5018.

Litigants may stipulate that the referee shall settle the issues in a case referred to him. Kelly v. West, 48 Okl. 274, 149 P. 902. Where a litigant joins in a motion asking for a reference and that a particular person be appointed referee and empowered to settle the issues, and later files supplemental pleadings, he will be deemed to have stipulated that the power shall be exercised. Id.

(Caption.)

STIPULATION TO REFER ISSUES

It is hereby stipulated and agreed by and between the parties hereto that all of the issues in the above entitled cause between plaintiff, A. B., and defendant, C. D., both of law and of fact, may be referred to the Honorable M. N., and that said referee may hear and report to this court upon all of the issues herein.

Dated

§ 1910.

19

G. H., Attorney for Plaintiff.

X. Y., Attorney for Defendant.

Upon application or court's motion-Order-Form "When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in either of the following cases: Where the trial of an issue of fact shall require the examination of mutual accounts, or when the account. is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove the account; in which case the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein; or where the taking of an account shall be necessary for the information of the court before judgment, in cases which may be determined by the court, or for carrying a judgment into effect, or where a question of fact other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of an action." 24

24 Rev. Laws 1910, § 5019.

Mutual accounts.-Where an action requires an examination of mutual accounts, the court may, over objection on request of either party, or on its own motion, direct a reference. Hale v. Marshall, 52 Okl, 688, 153 P. 167; Hale v. Marshall, 52 Okl. 688, 153 P. 167.

Where, in a contractor's action on a paving contract, the city pleaded as a set-off overpayments on a previous sewer contract, and the case involved the examination of a long and intricate account, the court properly directed a reference. Ritchie v. City of Topeka, 138 P. 618, 91 Kan. 615.

An action for an accounting of royalties, under a gas lease requiring the examination of a long account of the gas taken from several wells for a considerable time, was properly sent to a referee for trial. Culbertson v. Iola Portland Cement Co., 125 P. 81, 87 Kan. 529, Ann. Cas. 1914A, 610.

That one of the parties to an account claims that a portion of the items embraced in it have been settled, which claim the other denies, will not pre

An action for a penalty for usury is referable.25

On a motion to refer, the court looks to the pleadings to determine if a reference is authorized. 26 The matter of granting a reference is largely within the discretion of the trial court.27

vent a reference and determination of all the dealings between the parties. Smith v. Scully, 71 P. 249, 66 Kan. 139. A case requiring an examination of mutual accounts is a subject of compulsory reference. Id.

A refusal to order a reference in an action on a long account is not erroneous, where only three items thereof are in controversy. J. R. Watkins Medical Co. v. Hamm, 130 P. 650, 89 Kan. 138.

Where, in a suit to foreclose a mortgage to a building association, the ques tion whether the note had been paid involved an inquiry into a long account between the parties, consisting of items of payments, interest, etc., and fines, owing to default on the part of the borrower in payment of the assessments and dues, and it appeared that the mortgagee was insolvent, so that premiums should be credited to the mortgagor after the payment of the association's debts, it was proper to send the case to a referee for the taking of an account between the parties. Abbott v. Arkansas City Building § Loan Ass'n, 66 P. 1041, 63 Kan. 888.

In an action on several notes, the makers in their answer alleged that they delivered to plaintiff certain notes as collateral security to the indebtedness evidenced by the notes sued on, and that plaintiff had failed to use diligence in collecting said notes. They also sought to set off an open account against plaintiff, and asked damages for breach of contract. The reply alleged that some of the notes were incorrectly listed, and that others were given to plaintiff to secure other notes given by the makers, and denied generally all allegations of the answer not admitted or pleaded to. Held, that the issues raised by the pleadings were not within the provisions of the statute, authorizing a compulsory reference. Alford v. Buford & George Implement Co., 53 P. 530, 7 Kan. App. 754.

Plaintiff alleged that he had given defendant a mortgage on farm implements, horses, and cattle; that a verbal agreement was entered into that the mortgagor might from time to time sell the property to apply on the mortgage debt; that the defendant, disregarding this agreement, took possession of the property, sold it at public sale, and bid it in in such manner that it brought much less than its value, and refused to credit plaintiff with its reasonable value. In the second count of the complaint it was alleged that defendant took possession of 20 head of plaintiff's cattle, and so treated them that their value was greatly decreased. The prayer was for an accounting, and a recovery of the difference between the selling price of the property and its real value, and for damages for the diminished value of the cattle. Held, that the matters alleged were proper subjects for reference. Shore v. White City State Bank, 59 P. 263, 61 Kan. 246.

Account on one side only.-Where, in an action against a township treas

25 Grainola State Bank v. Shellenberger (Okl.) 197 P. 436.

26 Lapham v. Kansas & Texas Oil, Gas & Pipe Line Co., 123 P. 863, 87 Kan. 65, Ann. Cas. 1913D, 813.

27 Johnson v. Jones, 39 Okl. 323, 135 P. 12, 48 L. R. A. (N. S.) 547.

(Caption.)

APPLICATION FOR APPOINTMENT OF REFEREE

Comes now the above named plaintiff, A. B., by his attorney, G. H., and moves the court to make and enter an order herein appointing a referee, and referring the above entitled cause to said referee so appointed, for the purpose of taking an accounting between the plaintiff and the defendants herein of all receipts and disbursements had or made in connection with the acquisition and development of the following described property, to wit: (Describing same.)

day of

In support of said motion this plaintiff shows to the court that heretofore, to wit, on or about the this court made and entered its order herein adjudging that this plaintiff is entitled to a interest in profits thereof accrued or to accrue, fendant C. D. to hold title to said paid his expenditures in full, and ordering that an accounting be had before a referee to be appointed by this court.

above described, and in the subject to the right of said deuntil he shall have been

That thereafter the said defendant C. D. duly filed his motion for a new trial, which said motion was by this court on the

day

urer and his bondsmen, a jury would have had great difficulty in determining the amount of the indebtedness of the treasurer to the township, because of voluminous book accounts, it was proper to appoint a referee. Weakley v. Cherry Tp., 63 P. 433, 62 Kan. 867.

A claim for services and a number of items of expenses, with proper credits' of payments thereon, constitute one account only, and do not involve mutual accounts. Lapham v. Kansas & Texas Oil, Gas & Pipe Line Co., 123 P. 863, 87 Kan. 65, Ann. Cas. 1913D, 813. That one party kept one side of the account and the other party the other side thereof is immaterial in determining whether there were mutual accounts. Id.

Where an issue of fact is joined upon an account pleaded on one side only, and it shall be made to appear that it is necessary that the party on the other side should be examined as a witness to prove the account, the court has the power to make a reference, without the consent of defendants; and defendants are not entitled, as a matter of right, to a trial by jury. Van Trees v. Territory, 51 P. 495, 7 Okl, 353.

Account necessary before judgment.-A cause was a proper one for refer ence where before any judgment could be rendered, it was necessary that the books of a corporation purchasing, selling, shipping, and handling grain, live stock, and other farm products, and hundreds of accounts with customers should be examined. Hoffman v. Farmers' Co-op. Shipping Ass'n, 97 P. 440, 78 Kan. 561.