It was not misconduct for a referee, who was appointed to determine the amount of an indebtedness, to look over bank books and checks received in evidence, and talk with the banker who had them. in custody, after the hearing, where beyond what was contained in the books such witness' testimony amounted to nothing.49 After the parties have submitted their whole case to a referee, without objection, it is too late for the losing party to insist that a regular term of court has intervened between the order of reference and the report at which no order was made continuing the reference, or extending the time for a report, and that therefore the referee has no jurisdiction.50 "It shall be the duty of the referees to sign any true exceptions taken to any order or decision by them made in the case, and return the same, with their report, to the court making the reference." 51 (Caption.) REPORT OF REFEREE This cause was referred to the undersigned by order of this court dated 19—, for the purpose of taking an accounting 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 by subsequent orders of this court the time in which the referee might hear said matter and make his report was extended to 19—, copies of all of which orders are hereto attached. In accordance with the above authority this matter was set for report is filed before the close of the November term for 1884, in accordance with the terms of the stipulation. Davis v. Finney, 14 P. 460, 37 Kan. 165. An agreement was made in writing by counsel authorizing the court or judge to extend the time for the referee to report, with a condition that the plaintiff waived nothing by the stipulation. Held, that the condition was repugnant to the authority given for the extension of time, and that the party could not thereafter complain that the report of the referee was not filed within the time fixed by the original order. Shore v. White City State Bank, 59 P. 263, 61 Kan. 246. A referee's report which is presented to the clerk and marked "Filed" within the time allowed for its filing, and then withdrawn and retained until after the expiration of such time in order to have it bound, is filed in time. Poole v. Poindexter, 83 P. 126, 72 Kan. 654. 49 Weakley v. Cherry Tp., 63 P. 433, 62 Kan. 867, 50 Seiker v. Pracht, 18 P. 718, 39 Kan. 521. 51 Rev. Laws 1910, § 5022. hearing before the referee on 19, and continued from time -, 19-, at which time a to time, by agreement of parties, to hearing was had, the plaintiff, A. B., appearing in person and by counsel, G. H., and the defendant, C. D., being present in person and by counsel, X. Y., and at said hearing it was agreed that the defendant, C. D., should be allowed credit, and the plaintiff charged, with the following items: (Setting same forth.) It was agreed that the total income from the property involved from the beginning of operations to 19-, is: (Setting same forth), making a total sum in the possession of the defendant, C. D., received as income from said property of $ which is owing to the plaintiff, A. B., $ $ Summary -one-third of Total amount received from said property....$ One third of which is owing to the plaintiff, A. B., to wit: Comes now the defendant, C. D., and objects to the report of the referee, the Honorable X. Y., heretofore filed in this cause, and moves that the said report be not confirmed and that the cause be re-referred, upon the following grounds, to wit: 1. Because the report of the said referee is not sustained by the evidence. 2. Because the report of the said referee is contrary to law. 3. Because the report of the said referee shows on its face that it does not exhibit a true and complete account between the plaintiff and the defendant, C. D. 4. Because said referee has refused to allow defendant, C. D., credit for certain necessary expenditures made by him in the development of the leased property in question. 5. Because the referee has refused to allow defendant, C. D., credit for a reasonable compensation for the care and management of plaintiff's alleged interest in said property and the pumping thereof. 6. Because the said referee has failed to include in said account lawful interest coming to the said defendant, C. D., from money advanced by him for development of the leased property. 7. Because the referee has refused to allow defendant, C. D., credit for certain expenditures made by him in the development of said leases in agreement with L. M. 8. Because the referee has refused to allow defendant, C. D., credit for the taxes paid by him on the alleged interest of plaintiff, amounting to $ 9. Because the referee has refused to allow defendant, C. D., credit for the sum of $ , expended by him in erection of tank houses. (The above grounds for example. Others may be used.) § 1914. Review by court , Attorneys for Defendant, C. D. A court which appoints a referee can review, modify, or correct his report, or set it aside and grant a new trial, though no exceptions were filed or motion for new trial presented to the referee.52 52 Humble v. German Alliance Ins. Co., 116 P. 472, 85 Kan. 140, Ann. Cas. 1912D, 630; Krapp v. Aderholdt, 21 P. 1063, 42 Kan. 247. Where, under Sess. Laws 1907–08, c. 31, art. 4, § 16, conferring on the Supreme Court exclusive original jurisdiction over county seat contests, the court appoints a referee with authority to hear the case and report the evidence with his findings of fact and conclusions of law, the report thus made is to be given every reasonable presumption of being correct. Town of Grove v. Haskell, 31 Okl. 77, 116 P. 805. In a suit in equity commenced in the court of Indian Territory prior to statehood and by consent referred to a master to take evidence and make findings and conclusions, the district court as successor to the court where the suit was commenced could set aside the findings and conclusions of the master and make others when the master's findings were clearly in conflict with the evidence. Gidney v. Chapple, 110 P. 1099, 26 Okl. 737. The district court has power to set aside, confirm, or modify the report of a referee, and, where material findings of fact are contained in his report, which the court finds are not sustained by any evidence, it is error to confirm the report in all things and render judgment thereon. Jones v. Franks, 6 P. 789, 33 Kan. 497. The court may set aside, confirm, or modify the report of a referee in a disbarment proceeding. State v. Vernor, 79 Okl. 124, 191 P. 729. It may correct a referee's findings of fact only in cases where the authority is conferred by stipulation, or in cases referable without consent.5 53 A report of a referee appointed by the district court may be attacked by motion to set aside, or by exception filed on the coming in of the record, and it is not essential that exceptions be taken to errors on the trial, which appeared in the record:54 Where the referee has made his report, on a question of fact, but no action has been taken thereon, and at the trial all the questions are submitted to the court as though no reference had been had, such reference and report are not binding on the court, and may be disregarded.55 Where a stipulation is filed by the parties that the report of the referee shall be heard and judgment rendered in vacation, and objection is subsequently made to the stipulation being carried out for want of power to render a judgment at such time, the district court has authority to hear and dispose of the report of the referee at the first term after the report is filed. 56 Where a referee is required to report the facts, the report has the same force and effect as the verdict of a jury,57 and the court should not disturb such findings, unless clearly against the weight of the evidence. 58 One desiring to have the evidence taken by a referee reviewed by the district court to determine whether it supports the findings should have a bill of exceptions containing the evidence allowed by the referee, and if necessary apply for time to prepare exceptions. If there is not sufficient time to apply to a referee to prepare a bill of exceptions, application should be made to the court which may direct the report to be held, or, if filed, referred back to the referee, or the court can order the referee to report the evidence.59 A general objection to the refusal of a referee to adopt a set of 53 Tribal Development Co. v. Roff, 125 P. 1124, 36 Okl. 74. 54 Kelly & Lysle Milling Co. v. Schreiber, 108 P. 816, 82 Kan, 403, 20 Ann. Cas. 192. 55 Bethell v. Chicago Lumber Co., 39 Kan, 230, 17 P. 813. 56 Davis v. Finney, 14 P. 460, 37 Kan. 165. 57 Shannon v. Petherbridge, 87 P. 668, 17 Okl. 507. 58 Erisman v. Kerwin, 56 P. 858, 8 Okl. 92. 59 City of Newton v. Toevs, 107 P. 543, 82 Kan. 15. conclusions of fact will not avail the party offering them, if any of the conclusions were rightfully rejected.6° An objection to the confirmation of the referee's report on the ground that it is not sustained by the evidence is properly overruled where the evidence is not before the court on the hearing of the report.61 Where a particular finding of fact of a referee is not predicated on the issues joined by the pleading,2 or is not sustained by sufficient evidence, the same should be set aside on motion of the aggrieved party, and a new trial granted.63 Where a referee sustains a motion to strike out certain testimony, and no order is made reinstating it, such testimony cannot be considered by the court in determining whether there was any evidence to sustain the finding of the referee.** Where it appears that the party moving to set aside the report of the referee has been notified what the decision of the referee will be, and has ample opportunity thereafter to prepare and present a bill of exceptions to the referee, the report will not be set aside because such party did not have actual notice of the particular day the referee would file his report. 65 It is not error for the court to overrule a motion to strike the referee's report from the files, for the reason that the defeated party was not notified of the finding and conclusions of the referee, where it is not shown that any substantial right was prejudiced thereby.** The conclusions of law made by a referee on his findings of fact are in no particular binding upon the trial court, and may be set 60 Breitkreutz v. National Bank of Holton, 79 P. 686, 70 Kan. 698. 61 Province v. Lovi, 47 P. 476, 4 Okl. 672. 62 Lee v. Hai: lip, 99 P. 806, 22 Okl. 393, judgment reversed on rehearing 99 P. 1135, 22 Okl. 393. 63 Chandler v. Dye, 15 P. 925, 37 Kan. 765. Where there is no evidence reasonably tending to support the finding of fact made by a referee, but there is an overwhelming preponderance of testimony against such finding, and the finding of fact is one which materially supports the conclusions of law made by the referee, the finding of fact and the conclusions should be set aside. Jackson v. Thornton, 58 P. 951, 8 Okl. 331. 64 Kansas City Paper House v. Foley Ry. Printing Co., 118 P. 1056, 85 Kan. 678. 65 Davis v. Finney, 14 P. 460, 37 Kan. 165. ce Clark v. Bank of Hennessey, 79 P. 217, 14 Okl. 572, 2 Ann. Cas. 219. |