Walker v. Walker

1. PLEADING & PRACTICE — Findings of Referee — Waiver. In submitting the action, by agreement, on the evidence taken before the referee, the plaintiff -waived his motion for judgment on The finding of referee, and thereby submitted the cause, on the pleadings and the evidence, for the determination of the court. 2, COSTS — Action for Accounting. In an action lor an accounting, the statute confers discretionary power on the court to apportion the cost as it may think right and equitable. (Syllabus by the Court.)

Error from Che District Court of Garfield Countyj before James K. Beauchamp Trial Judge. STATEMENT OF FACTS. Action bronglit in the district court of Garfield county for an accounting, and for the dissolution of a partnership composed of William H. Walker and Harry E. Walker, under the firm name and style of Walker Brothers. By agreement of parties, thé cause was referred to a referee to take the evidence and report his findings of fact and conclusions of law thereon. In accordance with this-agreement the cause ivas referred to C. H. Parker, as referee, who heard the evi deuce, had the same reduced to writing, and made his findings of fact and conclusions of law thereon. The referee, in his first report, found that there should be charged to the plaintiff the sum of $3,990.33 and that he should be credited with the sum of $2,678.72; and that there should be charged to the defendant the sum of $3,748.00, and that there should be credited to him the sum of $2,426.00. To this report and findings of the referee, the plaintiff filed exceptions, and the court, without consideration-of the report, or the exceptions thereto, and' b}r consent of the parties, re-committed said cause to the referee for additional evidence and findings of fact. Thereafter the referee made his second and final report, and found as a result of said accounting that there should be charged to the plaintiff the sum of $3,256.23, and that he should be credited with the sum of $3,054.12. That there should be charged to the defendant the sum of $5,026.08, and that he should be credited with the sum of $2,401.13, and recommended judgment in accordance therewith. The plaintiff filed a motion to confirm this report of the referee, and the defendant objected to the confirmation of the report, and filed numerous exceptions thereto. Thereupon, and on the 20th day of June, 1903, by agreement of parties, the cause was submitted to the court, on the evidence taken before C. IT. Parker, referee, and the court, having considered the testimony, having heard the argument of counsel, and being fully advised in the premises, found in favor of the plaintiff for the sum of $309.64, and assessed the costs equally between the plaintiff and defendant. To which ruling, findings and judgment of the court the plaintiff, as well as the defendant, excepted and exceptions were allowed. Thereafter the plaintiff, in due time, filed his motion for a new trial, which motion was overruled and exception saved, and he brings the case here for review.