Lee v. Dunn

Rombauer, J.,

delivered the-opinion of the court.

The plaintiff recovered judgment in the circuit court for one hundred and six and eighty one-hundredths dollars. The defendant, appealing, assigns for error the rulings of the court in refusing to strike out plaintiff ’ s amended statement, in referring the cause after a jury was impaneled for its trial, and in overruling his exceptions to the referee’s report. •

The action was instituted before a justice of the peace on the following statement:

“John Dunn to A. Lee, Dr.

“To balance on settlement......,........$121.94

Interest on same for two years and eight months at six per cent.............. 19.84

Total..........................$141.78”

Upon appeal in the circuit court, the plaintiff filed an amended statement setting out the full account between himself and the defendant, showing a balance-of $121.94 due the plaintiff, and claiming a settlement.

The defendant moved to strike out this amended statement on the ground that it was a departure from the original cause of action, and that the amended statement, contained other and different items from those em *469 braced in the original statement. No evidence was offered in support of this motion. The amount sued for was the same and there is nothing in the record to indicate that the cause of action is not identical. The motion was properly overruled.

The bill of exceptions recites : “This cause coming on to be heard, a jury was empaneled, and the trial submitted to the jury, and pending said trial the court, of its own motion, set aside said submission,' discharged the jury, and ordered the cause to be sent to a referee for hearing. Thereupon the parties consented to the appointment of Richard E. Buehler as referee.” No objection is shown to have been made at the time to this action of the court.

The record proper recites: “By agreement of parties the cause is referred to Richard E. Buehler.” These recitals show that the defendant is not in a position to complain of the action of the court in ordering a reference of the cause, regardless of the question whether the action was one which the court was empowered by the statute to refer on its own motion.

The referee heard the evidence and reported to the court that plaintiff was entitled to recover of the defendant the sum of one hundred and six and eighty one-hundredths dollars, and the court rendered judgment accordingly.

Exceptions were filed to the referee’s report on the ground that he admitted illegal testimony for the plaintiff and excluded legal testimony offered by the defendant, and that his findings were against the evidence and weight of evidence. The referee’s report of the testimony, which forms part of the record, fails to show that he erred in either particular. It does appear that certain testimony offered by plaintiff was objected to, but it now’here appears that the referee admitted or considered it. It does appear that certain testimony offered by defendant was objected to, but it nowhere appears that the referee excluded it. In that state of the record the presumption is, that the referee’s finding *470 is based only on legal evidence offered by plaintiff, and that he did consider all legal evidence offered by the defendant. It is incumbent upon the party who complains of error to show such error.

There is substantial evidence to support the referee’s finding, and as his finding is in the nature of a special verdict, it cannot be reviewed in this court on the sole ground that it is opposed to the weight of the evidence. Kennard v. Peck, 19 Mo. App. 344 ; Hornblower v. Crandall, 7 Mo. App. 220 ; s. c., affirmed, 78 Mo. 581 .

Judgment affirmed.

Judge Thompson concurs. Judge Lewis is absent.