of 19—, overruled, and the court having granted said defendant at that time an extension of sixty days' time within which to make and serve a case-made on appeal to the Supreme Court, and the time for appeal having expired, said defendant having failed to perfect his appeal, said order of the court, as above mentioned, has become and is now a final order and judgment by reason whereof the court should, in accordance with the terms and conditions of said order, make an order appointing a referee and referring this cause to said referee for the purpose of taking the account, as provided in the previous order of this court herein before mentioned. -, Attorneys for Plaintiff. § 1911. Reference in vacation "A judge, in vacation, upon the written consent of the parties, may make any order of reference which the court of which he is a member could make in term time. In such case, the order of reference shall be made on the written agreement of the parties to refer, and shall be filed with the clerk of the court, with the other papers in the case.' 28 § 1912. Referee-Appointment, qualification, and compensation Order Oath-Forms "In all cases of reference, the parties, except when an infant may be a party, may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered accordingly; and if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be free from exception." A referee is an officer of the court, and under its supervision, for the purpose of the accomplishment of justice in the matter which has been referred to him.30 1929 A referee, sitting in the place of a court, is not disqualified because employed as an attorney in another cause involving substantially the same questions of fact and law as the cause referred to 28 Rev. Laws 1910, § 5023. 29 Rev. Laws 1910, § 5021. In case where reference is proper, trial court, on request of either party unless one is a minor, should give the parties an opportunity to agree upon a referee or referees not exceeding three. Swarts v. State (Okl.) 174 P. 255. On the failure of parties to agree upon a referee or referees, the court may make a proper appointment without their consent. Id. 30 State Bank of Stockton v. Showers, 70 P. 332, 65 Kan, 431. him. He cannot pass on a motion which presents the question of his own bias or prejudice, but such objection must be raised by a motion to the court to discharge the referee.32 Where a reference is made to three, a majority may act.33 "The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case." 34 "The referees must be sworn or affirmed well and faithfully to hear and examine the cause, and to make a just and true report therein, according to the best of their understanding. The oath may be administered by any person authorized to take depositions." 35 Although the oath required by statute should be taken, a substantial compliance therewith is sufficient,36 and omission by a referee to take the oath as required is an irregularity only, which is waived by proceeding to trial without objection.37 31 Holt v. Holt, 102 P. 187, 23 Okl. 639. 32 Brewer v. Asher, 56 P. 714, 8 Okl. 231. 38 Under the statute providing that words giving joint authority to three or more persons are considered as giving such authority to a majority, unless otherwise expressed, a report of two of three referees, the other having failed to appear and qualify, is valid. Blevins v. Morledge, 47 P. 1068, 5 Okl. 141; Rev. Laws 1910, § 2950. 34 Rev. Laws 1910, § 5025. Allowance of $2,550 to a referee for services for 30 days reduced to $1,000. Jordon v. Western Union Tel. Co., 76 P. 396, 69 Kan. 140, judgment modified 85 P. 285, 70 Kan. 880. The court cannot order the parties to an action to deposit the amount of the referee's costs before he reports who is the prevailing party, though the statute provides that a referee shall "receive such compensation as the court shall direct, to be paid by the prevailing party before the report is filed and recorded, as costs in the action." Cummins v. Robinson, 2 Okl. 494, 37 P. 1064. 35 Rev. Laws 1910, § 5024. 36 Kelly v. West, 48 Okl. 274, 149 P. 902. Failure of a referee to take the oath prescribed by Rev. Laws 1910, § 5024, will be deemed waived, where the parties proceed to trial and submit their case without objection on this point. Id. 37 Logan v. Brown, 95 P. 441, 20 Okl. 334, 20 L. R. A. (N. S.) 298. (1783) ORDER REFERRING ISSUES AND APPOINTING REFEREE day of (Caption.) Now, on this 19, the above entitled matter coming on for hearing upon the motion and application of the plaintiff for the appointment of a referee, and all parties being present by their attorneys, and it appearing to the court that a referee should be appointed herein, in accordance with the order of this court heretofore made and entered on the day of 19, for the purpose of taking an account between the plaintiff and 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); and it further appearing to the court that X. Y. is a suitable person to act as said referee: It is therefore by the court considered, ordered, and decreed that X. Y. be, and he hereby is, appointed referee for the purpose of taking an account as aforesaid, and said referee is hereby ordered and directed to take such testimony as is necessary, and report his findings of facts and conclusions of law herein, within 60 days from this date. District Judge. OATH OF REFEREE (Caption.) State of County of SS.: I, X. Y., the heretofore duly appointed referee in the above entitled cause, being first duly sworn, upon oath do hereby solemnly swear that I will well and faithfully hear and examine the above entitled cause, and make a just and true report therein, according to the best of my understanding and ability. So help me God. Subscribed and sworn to before me this 19 (Seal.) My commission expires (Signature.) day of Notary Public. § 1913. Trial-Reports-Exceptions-Forms "A trial before referees is conducted in the same manner as a trial by the court. They have the same power as the court to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trial of the case, and to grant adjournments upon such trial. They must state the facts found and the conclusions of law separately, and their decisions must be given, and may be excepted to and reviewed in like manner. The report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the referee is to report the facts, the report has the effect of a special verdict." 38 Where a case is sent to a referee to find the facts and the law, and there are several important matters in controversy between the parties, it is the duty of the referee to find specifically as to each of them, so that, if it is desired, exceptions may be properly taken, and a review had thereon by the court; 39 however, a referee who makes general findings of every material fact in issue is not required to answer numerous questions about minute details,1° nor is he required to answer a list of interrogatories, to be answered "Yes" or "No." 41 A referee may reserve his decision on objections made to evidence 88 Rev. Laws 1910, § 5020; Eberle v. Drennan, 136 P. 162, 40 Okl. 59, 51 L. R. A. (N. S.) 68. The report of a referee determining the whole issue by findings of fact and conclusions of law, separately stated, stands as the decision of the court, and judgment may be entered thereon as if the action had been tried by the court. Kelley & Lysle Milling Co. v. Schreiber, 102 Kan. 172, 169 P. 222. 39 Walker v. Hosack, 43 P. 781, 56 Kan. 468. 40 School Dist. No. 3 of Republic County v. Howell, 44 Kan. 285, 24 P. 365. In an action for an accounting between principal and agent, that is referred to a referee to hear and determine all the issues, both of law and fact, it is the referee's duty to state the facts and conclusions of law separately; and a general finding that there is a balance due on account, without special findings as to the facts concerning the principal items about which there has been much controversy, is so indefinite and insufficient that it ought not to be confirmed, as the complaining party cannot assign errors as to the insufficiency of evidence to sustain the finding. McMullen v. Schermerhorn, 30 P. 188, 48 Kan. 739. 41 In a trial before a referee, a submission of a list of interrogatories, to be answered "Yes" or "No," by the referee, was properly refused. Breitkreutz v. National Bank of Holton, 79 P. 686, 70 Kan. 698. until his final decision of the case.42 He should announce his findings and conclusions to the interested party a sufficient length of time before making his report to enable him to prepare and present his exceptions and preserve his record for review.43 If the report is silent as to a material fact, the presumption arises that the fact has not been proved.** Where the findings of the referee are defective in not stating the facts fully and explicitly, the party complaining thereof should ap ply for further and more specific findings.45 Where a referee fails to report in time, an objection by either party should be sustained, and a new trial ordered, but if either party consents, he waives the irregularity.40 Where a cause was referred by agreement, and the report was filed after the time prescribed by court, and a motion of the losing party to set it aside did not raise the question of delay in filing, it was a waiver of such objection.47 It is not error for the court, upon a sufficient showing, to extend the time for making such report, the referee being an officer of the court. 48 42 Bernhard v. City of Wyandotte, 6 P. 617, 33 Kan. 465. 43 Iralson v. Stang, 90 P. 446, 18 Okl. 423. 44 Brooks v. Garner, 97 P. 995, 20 Okl. 236, denying rehearing 94 P. 694. 20 Okl. 236. 45 Foster v. Voigtlander, 13 P. 777, 36 Kan. 572. 46 Hale v. Marshall, 52 Okl. 688, 153 P. 167. Where the report of a referee appointed to report the law and the facts is filed after the time set in the order, and the party against whom judgment is rendered appears and excepts to the confirmation thereof, the next day moved to set aside the order of confirmation, which is overruled, and who does not question the filing of the report out of time until after judgment, the objec tion is waived. Herring & Young v. West, 108 P. 372, 25 Okl. 788. Where a report of a referee on the law and facts is filed after the time designated, and the party against whom judgment is rendered appears at the filing, and moves for new trial, and raises no question as to the time of filing of the report, it will be presumed that the objection was waived. Bradford v. Cline, 72 P. 369, 12 Okl. 339. 48 Norton v. Huntoon, 22 P. 565, 43 Kan. 275; Clark v. Bank of Hennessey, 79 P. 217, 14 Okl. 572, 2 Ann. Cas. 219. Where a stipulation is filed by the parties that the referee shall submit his report to the district court for confirmation before the close of the November term of the court for 1884, and the said term of court is adjourned from a day in November until January 5, 1885, and continues in session until January 30, 1885, and the report of the referee is filed December 20, 1884, such |