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District Court of Appeal, Second District, Division 1, California.


Civ. S. C. 52.

Decided: July 13, 1937

John E. Carson and William G. Randall, both of Los Angeles, for appellant. Euler & Subith and B. R. Ware, all of Los Angeles, for respondents.

This is an appeal from an “Order and judgment (in probate) settling final account * * * and ordering distribution.”

In substance, as was briefly recited in respondents' brief, Barton Darlington, as executor of the last will and testament in the above–entitled estate, the appellant herein, filed his first and final account, report and petition for distribution. Respondents herein served and filed their exceptions and objections. The appellant served and filed his answer to said exceptions and objections wherein he denied part of the allegations of the exceptions and objections and left the balance of said allegations uncontroverted. The hearing on the aforesaid appellant's petition and final account, respondents' exceptions and objections thereto, and appellant's answer was set for November 14, 1935, at which time it was continued to November 29, 1935, when these matters and issues were “referred” to J. W. Mullins, Jr., one of the court commissioners. The record on appeal contains no minute order of this “reference” on this date.

According to the reporter's transcript on appeal, two days were devoted to the hearing; namely, December 5, 1935, and January 9, 1936. Six witnesses were examined and cross–examined concerning the issues raised by the exceptions and objections and the answers thereto. The clerk's minutes of January 9, 1936, as to matters therein recited that refer to the Jennie D. Hart estate, contain the further statement with respect thereto “Referred to J. W. Mullins, Jr.” It is not disputed that Mr. Mullin was and is the regularly appointed, qualified, and acting commissioner of the court. At the conclusion of the hearing, Mr. Mullin made the following remarks, quoting from the reporter's transcript on appeal: “The Commissioner: This case has a lot of peculiar phases to it, and while I am hearing it as a referee, and must make a finding to the court, I am going to ask––I don't know who would be deemed the prevailing party here to make findings on these matters, and I will add a page to it when it comes in reciting the reference to me of these matters by the judge, and make my findings, and then he will do what is necessary. * * * I will leave that more or less up to you, but under this referee system you understand I have to make a report unless they do want findings.” (Italics added.)

Mr. Mullin's remarks, above quoted, comprise the only evidence in the entire record up to this point that Mr. Mullin conducted the hearing as a referee and not as a court commissioner. In this connection the entry in the minutes, to wit, “Referred to J. W. Mullin, Jr.,” is of little, if any, evidentiary value. Only its literal meaning can be considered for, obviously, to do otherwise would be pure speculation.

Counsel for respondent Francis Darlington Hart prepared findings, which were duly served on January 16, and filed with the clerk on January 20, on which last–mentioned date Mr. Mullin sent a letter to counsel of record, a portion of which is as follows: “The Findings of Fact and Conclusions of Law of the Referee in the above entitled estate having been filed today, the Order adopting same will be signed by Judge White on the 29th day of January, 1936 unless additions or exceptions are received before that date.” Counsel for the executor then prepared alternative findings which were served on January 28, and filed with the clerk on January 29. On February 5, Mr. Carson, attorney for the executor and appellant, wrote a letter to Mr. Mullin, with copies thereof to counsel as follows:

“Mr. J. W. Mullin, Jr., February 5, 1936.

“Court Commissioner,

“17th Floor City Hall,

“Los Angeles, Cal.

“In re Estate of Hart––No. 146455

“My dear Mr. Mullin:

“At the close of the hearing on Findings this afternoon, in the above entitled matter, I did not call your attention to the provision of Sec. 259–a, Code of Civil Procedure, Subdiv. 2, regulating matters of this kind coming before Commissioners. The subdivision reads as follows:

“To take proof and make and report his findings thereon as to any matter of fact upon which information is required by the court; but any party to any contested proceeding may except to such report within five days after written notice that the same has been filed, and may argue his exceptions before the court on giving notice of motion for that purpose.'

“We desire to avail ourselves of our rights under said subdivision.

“Very truly yours,

“[Signed] John E. Carson,

“Attorney for Executor.

“Copy to B. R. Ware, Esq.,

“Attorney for contestant Francis Darlington Hart and Messrs. Euler & Subith, attorneys for contestant Richard N. Hart.”

Alhough there is mention in the letter just quoted, of a hearing on the proposed findings on February 5, the record is otherwise destitute of any reference thereto. Such hearing, however, is conceded in respondents' brief in the following manner: “A hearing was held before the referee on February 5, 1936, at which time all parties were present to consider the two sets of proposed findings and conclusions of law on all of the issues. At the hearing the referee eliminated certain portions of the findings proposed by respondents, but otherwise adopted the findings and conclusions of law on all of the issues proposed by respondents and rejected the proposed findings and conclusions of law on all of the issues proposed by appellant.”

Thereafter Mr. Mullin filed his report, which is entitled “Report of Referee Under Probate Code 927 and 259a C. C. P.” A portion of the first paragraph thereof is as follows: “* * * and an Order of Reference having been made by the Honorable Thomas P. White, the Judge presiding, appointing J. W. Mullin, Jr., Referee to hear and determine the issues, and a hearing having been had at which oral and documentary evidence was introduced, and the Referee being fully advised in the premises, he now makes his Findings of Fact and Conclusions of Law as follows: * * *.” (Italics added.) The report concludes with the signature “J. W. Mullin, Jr., Referee of the Superior Court.”

The judgment which followed was entitled “Order of Court Adopting Referee's Report.” It declared in the first sentence thereof that “J. W. Mullin, Jr., having been heretofore appointed Referee to hear and determine the issues set out in said Report, and said Report having been filed * * * The Court now adopts the Findings of the Referee as the Findings of the Court and hereby confirms the Referee's Report as follows * * * Wherefore, by reason of the law and the findings aforesaid, it is ordered and adjudged * * *.” (Italics added.)

It is contended by appellant that “The trial court erred in failing to conform to the requirements of section 259a, subdivision 2, of the Code of Civil Procedure, which grants to any party to a contested proceeding heard before a court commissioner a right to notice of the filing of the commissioner's report, a right to except to the same, and a right to argue his exceptions before the court. These are substantial rights of the parties litigant, and the provisions of the law are mandatory.”

Respondents, in effect, admit that the trial court did not conform to the requirements of section 259a, Code of Civil Procedure, but urge, as against appellant's contention, that the proceedings were not governed by said section but by section 638, subdivision 1, section 639, subdivision 1, and section 644 of the Code of Civil Procedure (as amended by St.1933, pp. 1877, 1878), which do not require any notice of the filing of a report and the opportunity to argue exceptions as required by section 259a, Code of Civil Procedure; that under a general reference the referee's findings are conclusive on the court, may not be modified by the court, and may only be excepted to and reviewed by a motion for a new trial; furthermore (quoting from respondents' brief), that “The minute order of January 9, 1936, sets forth that the various matters were referred to the referee”; and that “A general reference was intended, agreed to and obtained.” It is urged, further, again quoting from respondents' brief, that “Where the parties acted under stipulations, agreements and court orders and tried the whole case before the court commissioner who was appointed and acted as a referee precisely as it should have been tried before a referee, it is to be held that they intended a reference.” (Italics added.) In short, respondents rely upon the proposition that there was a general reference by stipulation, and cite in support thereof Lewis v. Grunberg, 205 Cal. 158, 270 P. 181, 182; Associated Sales Co. v. Elmer E. Frost & Co., 122 Cal. App. 234, 10 P.(2d) 175, and Jackson v. Puget Sound Lumber Co., 123 Cal. 97, 55 P. 788, 789.

It is also claimed by respondents that appellant has waived any rights that might have been available in the premises by having failed to object and by having failed to move a vacation of the judgment.

Appellant, on the contrary, stoutly denied the existence of anything in the record to support respondents' contention that the parties stipulated to a reference. In this connection appellant's indignation is warranted, for a careful examination reveals the record to be absolutely destitute of any evidence to justify such claim by respondents, either directly or by inference.

Controversies have frequently arisen, as a result of which appellate courts have been called upon to determine the legal effect of court orders for the appointment of referees. Almost without exception such cases arose from the uncertainty of the order in question as to whether a general or special reference was contemplated. In that connection the law appears to be well settled that, “unless it may be properly inferred by the court from the recitals in the findings of the referee and those of the court that the reference was general in its character, it must be presumed that it was a special reference for the benefit of the court.” Lewis v. Grunberg, supra. (Italics added.)

Respondents emphasize the asserted similarity of Jackson v. Puget Sound Lumber Co., supra, to the case at bar, but it should be noted that in the Jackson Case there was, first, a court order in some substantial form, and, second, there was an agreement between the parties, and in that connection, as the Supreme Court therein declared, “The intention of these parties clearly was to have their mutual claims determined and the balance ascertained by Mr. Wright. This is shown, not only by the terms of their agreement, but by their action under it.” (Italics added.) The facts in the Jackson Case bear slight resemblance to the facts in the case at bar.

Nor does the opinion in Garland v. Smith, 131 Cal.App. 517, 21 P.(2d) 688, 691, relied upon by respondents, tend in any degree to sustain respondents' contention. In that case the order appointing the referee was clear and unequivocal as to the duties and responsibilities of the referee. The court therein declared that by the provisions of section 638 of the Code of Civil Procedure, reference of an action of the character there under consideration could be ordered only “Upon the agreement of the parties filed with the clerk, or entered in the minutes.” It was held, in substance, that the statute was complied with and the order, therefore, was valid.

Before continuing with a discussion of the law with respect to what appears to be the decisive question herein, a brief summary of the facts and appellant's contentions will facilitate the application of the law thereto. Thus: In the probate court, issues which were raised by what is the equivalent of the pleadings were ready for trial; on the appointed day, the trial proceeded without objection before one J. W. Mullin, Jr., the commissioner of the court; at the conclusion of the trial Mr. Mullin announced that he was hearing the trial as a referee; thereafter, proposed findings were duly filed and served by both parties, argued before Mr. Mullin on February 5 and submitted on said date, whereupon, on the same day, appellant served written notice on Mr. Mullin and counsel that he desired to avail himself of his rights under subdivision 2 of section 259a of the Code of Civil Procedure; Mr. Mullin later filed his report with the court, which report declared that he (Mr. Mullin) had been appointed referee to hear and determine the issues; thereafter the court filed its judgment, which recited that Mr. Mullin had been appointed referee to hear and determine the issues set out in the report, which report was affirmed and the findings adopted by the court; appellant contends (and there is nothing in the record to refute such contention) that he had neither knowledge nor notice of events between the day the findings were argued and submitted and the day notice of the entry of judgment was received.

It is evident from the foregoing that appellant's complaint in this appeal is in substance, to the effect that he has not had his day in court. It becomes necessary, therefore, to determine what constitutes the court and the extent of its duty, as well as its responsibilities; also, what relation a commissioner or referee, as the case may be, bears to the court, and the source, as well as the limit, of the power and responsibility of such commissioner or referee.

Section 1 of article 3 of the Constitution provides that the government of the state of California shall be divided into three separate departments,––legislative, executive, and judicial; and section 1 of article 6 provides that the judicial power of the state shall be vested in certain courts therein named, which include the superior courts, and it is well settled that with respect to the section last mentioned, “except for local purposes,” it “disposes of the whole judicial power of the state and vests all of it in the courts expressly named therein, leaving none at the disposal of the Legislature.” Dept. of Public Works v. Superior Court, 197 Cal. 215, 221, 239 P. 1076, 1078, and cases cited therein. To the same effect see Van Camp Sea Food Co. v. Fish & Game Comm., 75 Cal.App. 764, 243 P. 702. As the Supreme Court of California has heretofore declared, “There are some decisions of this court, and many in other states, indicating that, notwithstanding such constitutional limitations, the Legislature may vest some powers of a quasi judicial nature in ministerial officers. * * * But [referring to the question therein under consideration], we are of the opinion that the Legislature cannot thus dispose of the judicial power of the state.” Burns v. Superior Court, 140 Cal. 1, 12, 73 P. 597, 602. Thus, unless expressly otherwise provided in the Constitution, the people have imposed upon the courts, as the only governmental agency, the duty to try and determine valid issues legally presented by proper parties litigant. Accompanying the power to perform this duty is a corresponding responsibility upon the court which legally cannot be evaded by the court any more than the power can be delegated. As an inevitable incident to this power and its corresponding duty and responsibility, but at the same time clearly contemplated, is the right of all parties litigant to have the principal, vital, and legal issues affecting their respective contentions tried and determined by the courts, unless the Constitution expressly provides otherwise. In keeping with this fundamental doctrine the rights of the people in this respect have been uniformly recognized, and judicial power has been consistently held to be fixed by law exclusively in the courts.

As an incident to the administration of justice there have been created what are officially termed “commissioners” and “referees.” The office of commissioner is authorized by the Constitution, whereas the office of referee is created by the Legislature. With respect to referees, the authority of the court to order a reference as well as the procedure pertaining thereto is found in sections 638 to 645, inclusive, of the Code of Civil Procedure (as amended by St.1933, pp. 1877, 1878). Without so deciding, there appears to be nothing in these provisions repugnant to the Constitution. Section 638 of the Code of Civil Procedure authorizes the referee “to try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a finding and judgment thereon.” But, it should be noted, this can be done, as the section further provides, only upon the agreement of the parties filed with the clerk or entered in the minutes. And, as has been hitherto declared, the validity of such an order depends upon the existence of an agreement evidenced in one of the two modes specified in the statute. Garland v. Smith, supra, 131 Cal.App. 517, at page 524, 21 P.(2d) 688. To the same effect see Barker Bros., Inc., v. Coates, 211 Cal. 756, 297 P. 8.

Section 644 of the Code of Civil Procedure, to the effect that the finding of the referee “upon the whole issue must stand as the finding of the court,” obviously refers to section 638 when, pursuant to such last–mentioned section, the parties have agreed to a reference. Under such circumstances, the law appears to be well settled that judgment can be entered only in accordance with the findings of the referee. Lewis v. Grunberg, supra.

Subdivision 1 of section 639 provides, in substance, that when the trial of an issue requires the examination of a long account, a reference may be directed to hear and decide the “whole issue.” (Italics added.) Such provision would appear to be, in the absence of a careful analysis, in conflict with the Constitution and the rights of the parties (as hereinbefore outlined) to a trial by the court, but the phrase “whole issue” has been construed to mean only the issue involved in the account. Barker Bros. v. Coates, supra.

As heretofore stated, the office of commissioner is authorized by the Constitution, which provides in section 14 of article 6 as follows: “The legislature may also provide for the appointment, by the several superior courts, of one or more commissioners in their respective counties, or cities and counties, with authority to perform chamber business of the judges of the superior courts, to take depositions, and to perform such other business connected with the administration of justice as may be prescribed by law.” It should be noted that this provision limits the authority of such commissioners to “chamber business of the judges,” the taking of depositions and to such other business connected with the administration of justice as may be prescribed by law. In no sense does it purport to vest a commissioner with judicial power, for such power is exclusively in the courts, to which, it is true, the commissioner is officially related, but only in effect as an assistant.

Pursuant to the authority thus granted by the foregoing section of the Constitution, the Legislature has authorized the appointment of commissioners and has fixed their duties as set forth in sections 258 to 259a, inclusive, of the Code of Civil Procedure. In accordance with the limitations of the Constitution, commissioners are permitted to be appointed “to assist” the court, but, by reason of the constitutional provisions heretofore mentioned, commissioners, as such, obviously cannot constitute a court.

Returning again to the facts, it will be remembered that the only order or purported order of reference, so far as the record discloses, is the single minute entry, namely, “Referred to J. W. Mullin, Jr.,” which, standing alone, would be void for indefiniteness. It is true that appellate courts, by the application of certain well–known presumptions, have gone to great length to sustain judgments, but it will hardly be contended that such decisions have gone beyond the bounds of reason. Generally, where the record is such that a determination is warranted, as, for example, in Lewis v. Grunberg, supra, the judgment will be sustained on the basis of the proposition that, unless it may be “properly inferred” that the reference was general, it will be presumed to have been special. But nothing can be inferred, at least properly, from the record in the case at bar, nor can any presumptions be applied that will save the judgment.

If Mr. Mullin acted in the premises as a commissioner, then appellant was denied a substantial right under the provisions of section 259a of the Code of Civil Procedure because of the denial of an opportunity to be heard in argument before the court on the exception to the report.

If Mr. Mullin acted in the premises as a referee, it was without authority under the law, for there was no agreement of the parties filed with the clerk or entered in the minutes, as required by section 638 of the Code of Civil Procedure. Mr. Mullin's report recites that he was appointed to hear and determine the issues, which under the law he was without authority to do in the absence of the recorded agreement just mentioned. The judgment recites in substance that J. W. Mullin, Jr., was appointed referee to hear and determine the issues set out in the report, and then purports to adopt the findings of the referee as the findings of the court. Thus the judgment confirms the error and emphasizes the evident fact that the issues were decided by Mr. Mullin when, under the law, appellant was entitled to a decision of the issues by the court.

In either event, whether Mr. Mullin purported to act as a commissioner or as a referee, the errors are fatal, and the judgment, therefore, is void.

The judgment recites, as heretofore noted, “The Court now adopts the Findings of the Referee as the Findings of the Court and hereby confirms the Referee's Report * * * Wherefore, by reason of the law and the findings aforesaid, it is ordered and adjudged, * * *” and in this from the judgment was filed, without an opportunity having first been given to appellant to be heard before the court. Such a proceeding is not a trial. Section 1230 of the Probate Code provides that “All issues of fact joined in probate proceedings must be tried in conformity with the requirements of the rules of practice in civil actions,” and, as has been declared by the Supreme Court, in substance, the responsibility of the court cannot under the law be relinquished to a third person without the full consent of the parties. Barker Bros., Inc., v. Coates, supra.

There is no merit in respondents' contention that appellant waived available rights either by having failed to object or by having failed to move to vacate the judgment.

It is unnecessary to give attention to other questions raised by the appeal.

For the foregoing reasons, the orders and judgment appealed from are reversed, and the cause is remanded.

DORAN, Justice.

We concur: HOUSER, P. J.; YORK, J.

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Docket No: Civ. S. C. 52.

Decided: July 13, 1937

Court: District Court of Appeal, Second District, Division 1, California.

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