Newcomb v. Wood, 97 U.S. 581 (1878)
U.S. Supreme CourtNewcomb v. Wood, 97 U.S. 581 (1878)
Newcomb v. Wood
97 U.S. 581
1. The power, with the consent of the parties, to appoint referees, and refer to them a pending cause is incident to all judicial administration, where the right exists to ascertain the facts as well as to pronounce the law.
2. Any issues in an action, whether they be of fact or of law, may be so referred by sec. 281 of the Code of Ohio.
3. A party who goes to trial before referees without requiring an oath to he administered to them waives any objection to the omission of such oath.
4. The fact that an award was signed by only two of three referees was not called to the attention of the court when their report was confirmed and judgment rendered thereon. Held that it furnishes no ground for reversing the judgment.
5. The fifth section of the Act of Congress of June 1, 1872, 17 Stat. 197, was not intended to abrogate the established law of the courts of the United States that to grant or refuse a new trial rests in the sound discretion of the court to which the motion is addressed, and that the result cannot be made the subject of review by writ of error.
Nov. 1, 1872, John Wood, assignee in bankruptcy of Philip E. Robertson, filed his petition in the District Court of the United States for the Northern District of Ohio against Stephen L. Newcomb to recover the value of certain goods sold to the defendant by Robertson, May 6, 1872, within four months before the latter filed his petition in bankruptcy. An issue of fact having been made by the pleadings, the case was, Nov. 18, 1873, by consent of the parties, referred by the court to Henry C. Hedges, Joseph C. Devin, and A. K. Dunn, as referees, with power to hear and determine all questions of law and fact, and report thereon to the court. Neither of the referees was sworn or affirmed, although the customary oath or affirmation was not expressly waived or insisted upon. Both parties were represented by counsel. Jan. 10, 1874, a report signed by Devin and Hedges was duly filed, awarding the plaintiff $6,356 and costs. Newcomb filed exceptions to the report on the ground that the referees were not sworn or affirmed well and faithfully to hear and examine the cause, and to make a just and true report therein according to the best of their understanding, as is required by law. The exceptions were overruled, and the report was confirmed by the court. A new trial having been refused, a judgment was rendered against him, which was affirmed by the circuit court. He then sued out this writ, and assigns the following errors:
That the District Court erred:
1. In appointing referees in said cause.
2. In overruling the exceptions to their report.
3. In rendering judgment upon said report, it having only been signed by two of the persons named as referees, none of whom was sworn.
4. In refusing to grant a second trial of said action.