Page:North Dakota Reports (vol. 2).pdf/198

 The opinion of the court was delivered by

Corliss, C. J. Most of the alleged errors in the case are not properly before us. The action was for dissolution of a copartnership between plaintiff and defendant. The issues coming on for trial at a regular term, the court made an order of reference, referring the action to a referee, “with the usual powers.” One of the errors assigned is the action of the referee in reporting findings of fact and conclusions of law. It is insisted that the order of reference is not broad enough to warrant the exercise by the referee of such power. The answer to this claim, is the consent of the defendant and appellant, made in open court, that the case be referred “to take testimony and report.” In all cases it is the duty of the referee to report the evidence, and the word “report” in the consent is unnecessary, unless it be construed as embracing the report of findings of fact and conclusions of law. Moreover, the order in terms referred the action, 7. e., the whole case, and was not limited to any specific issue or fact. Where the order is upon consent, it may direct the reference to all or any of the issues. Assuming that this was an order of reference upon consent, all the issues must be regarded as having been referred, not only because the whole case is referred, but also because no particular issues are designated in the order. Laws 1889, c. 112, §1. If it is a reference without consent the same conclusion is inevitable. It is apparent from § 2 of this act that unless the reference is limited by this order to.some specific question of fact, the referee is authorized to hear and decide all the issues. On the trial by a referee, practically the same proceedings are had as on a trial before the court. The referee must not only report the evidence, but also his findings and conclusions. This is what he has done in this case, and this it was his duty to do under the statute and the order of reference and defendant’s consent.

It is next insisted that the referee, if he had full authority to try the issues, erred in not ruling upon certain objections to evievidenceevidence [sic] offered by plaintiff and received by the referee. No exception having been taken before the referee, the defendant cannot avail himself of these objections. Section 3 of chapter 112 of Laws of 1889, requires the referee to report to the court