4. Errors not specified in bill of exceptions, where motion for a new trial is made on a bill, must be disregarded by the trial court and on appeal.
(Opinion Filed Aug. 14, 1891.)
APPEAL from district court, Grand Forks County; Hon. Charles F. Templeton, Judge.
A. J. O'Keefe and O. H. Boyeson, for appelant. Bangs & Fisk, for respondent.
Action by Thomas Illstad against Edward Anderson for a dissolution of a co-partnership and an accounting. Judgment for plaintiff. Defendant appealed. Affirmed.
A. J. O’Keefe, for appellant:
The order of reference should have directed the referee as to whether he was to hear and try the case or simply to take an account between the parties, and if the reference was to take the account only he had no power to pass upon its validity or upon objections made. Sutt v. Wegner, 43 N. W. Rep. 167; in re May, 6 N. Y. Sup. 356; Fox v. Moyer, 54 N. Y. 125; Gill v. Russell, 23 Minn. 362; Brotherton v. Brotherton, 15 N. W. Rep. 347; Scott v. Williams, 14 Ab. Pr. 70. The order of reference should direct the referee to find facts if that was the intent of the court when the order was made. Bigne v. Danie, 21 Pac. Rep. 52. If it does not his findings are void. Royal v. Baer, 17 Ind. 332; Thornburg v. Alleman, 17 Ind. 434; Board of Trustees v. Huston, 12 Ind. 276. On the other hand if the referee was appvinted to hear, try and determine the action by findings, it was error if he neglected to pass upon objections taken, make rulings and allow exceptions that might afterwards be heard and considered by the court. Wallace v. Douglas, 9 8. E. Rep. 453; Leigh Stove Co. v. Colby, 24 N. E. Rep. 282; Belts v. Selcher, 46 N. W. Rep. 193; Hall vy. Able, 10 N. Y. 581. He has exclusive jurisdiction to pess on exceptions just asa judge has ina case submitted to him. Railroad Co. v. Moyer, 17 Atl. Rep. 461; Woodruff v. Dickie, 31 How. Pr. 164; Hoyt v. Hoyt, 8 Bosw. 511. The referee cannot reserve his decisions on questions raised and make his rulings after the case has
