§ 429. Attacking action of master on ground of irregu larity - Continued. In case the master fails to report upon important questions of fact necessary to be passed upon by him the report will be recommitted to the master with further directions.1 So, too, where he disregards the instructions of the court, or where he does not furnish the facts necessary for the court to make a decree, the report will be set aside though no exceptions have been filed. If a master in chancery fails to call upon either of the parties to produce books, papers or vouchers relating to the matters referred to him, and does not examine the parties under oath, the proper course for a dissatisfied party is to apply to the court by motion for an order requiring him to do what he should have done. This is also the practice where proper testimony is refused on a reference. Such irregularities in proceeding by the master cannot be corrected by excepting to the report. Exceptions to the findings are only proper when the dissatisfied party desires the court to review the conclusions of the master of law or fact on the evidence before him, touching the reference.3 Another irregularity to be corrected by motion to re-refer is where a party complains of want of notice of proceedings in the master's office. If a party has not been notified of the proceedings in the master's office, the chancellor, unless the error was waived, should re-refer the cause to the master upon that ground. This should regularly be done upon motion supported by affidavits, though in the Illinois case cited in the foot-note the defendant excepted and read his own affidavit in support of the exception. Motion may be made and heard by the court to recommit a report of the master or commissioner because of want of notice or insufficiency of notice, but the party making such motion should show beyond question that he is not guilty of negligence, otherwise the court will be justified in refusing him. Such motion must be made in apt time; for example, an objection that the master's report was returned without giving any notice to the party, or giving 1 Webster Loom Co. v. Higgins, 39 Fed. 462. 2 Lang v. Brown, 21 Ala. 179, 56 Am. Dec. 244. Emerson v. Atwater, 12 Mich. 814, 322, citing Schwarz v. Sears, Walk. Ch. (Mich.) 19; Ward v. Jewett, id. 45; Hoff. Mast. in Ch. 58, 59. 4 Whiteside v. Pulliam, 25 Ill. 285, 288. 5 Snickers v. Dorsen, 2 Munf. 505. him an opportunity to be heard by exception, must be taken by motion before filing the exception to the report. If a party desires to attack a master's report on the ground of want of notice of proceedings in the master's office he must do so in the court below. On appeal it is too late.2 The § 430. Attacking action of master on ground of irregularity Continued. It has been held that the proper course is, where the master reports upon matters not authorized by the order of reference, not to except to the report, but to move the court to re-refer it to the master for review; indeed, the safer course, in all cases where a party desires to attack the master's action on the ground of irregularity, is to proceed by motion, for the reason that by excepting he waives the irregularity. If the master exceeds his powers and reports upon matters not referred to him, it has been decided that the proper course is to move the court to re-refer the case to the master for review, or if no such application is made, and the report is confirmed, the court will pay no attention to it, except so far as warranted by the order of reference. practice in this regard, however, is not uniform, for it has been held that questions not referred to the master but passed upon by him may be called in question by exceptions; and in Georgia it has been held that the master has no authority to take testimony or to pass upon any matters not submitted to him by the order of reference, and if he does so exceptions should be sustained thereto or it should be stricken out on motion, or treated as surplusage. The court thus recognizes either one of three courses as proper: either to except to such superfluous matter, move to strike it out, or to treat it as surplusage and ignore it. So, too, Judge Story held that where the master proceeds to investigate matters not put in issue by the pleadings and not within the order of reference and makes a finding thereon, in addition to the duties imposed upon him by the pleadings and order of reference, and the court is satisfied with the legitimate 1 Lamson v. Drake, 105 Mass. 564. 2 Shenandoah Valley Nat. Bank v. Shirley, 26 W. Va. 563, 569. 3 Tyler v. Simmons, 6 Paige, 127; Walker v. White, 5 Fla. 478, 486. 4 Daniell, Ch. Pr. 1296, citing Jenk. ins v. Briant, 6 Sim. 605; Levert v. Redwood, 9 Port. (Ala.) 79; Gordon v. Hobart, 2 Story, 248, Fed. Cas. 5,608; Harris v. Fly, 7 Paige, 421. 5 Taylor v. Robertson, 27 Fed. 537. 6 McMahon v. Paris, 87 Ga. 660, 662, 13 S. E. 572. findings, the report will be confirmed after striking out such superfluous matters.1 The report of a master, so far as it relates to matters not referred to him, is a nullity. The fact that the parties raise no objection at the hearing before the master does not confer au- · thority on him to pass upon such matters, and the court on exceptions will strike out such superfluous matters and confirm the report, if otherwise correct. Or the court may, when the master permits the reference to go beyond the matters in controversy, confirm the report as to matters that are within the order, if the objecting party has suffered no harm from the erroneous action of the master. The safer practice, however, is to strike out the superfluous matters, and confirm the report as to the remainder if found to be correct. If, however, the court can see that the findings of the master have in any way been influenced by the investigation of matters not properly before him, then the court should recommit the whole matter to the master with further directions. Although the master may certify that the main issue submitted to him is a matter which in fact is not submitted to him at all, and proceed to make a finding thereon, and certifies that all the allegations of the bill are supported by the proofs, when in fact no proof at all has been submitted in support of one of the principal allegations, yet this will not invalidate his report if the evidence as a matter of fact fully sustains the report and the other essential matters. § 431. Attacking action of master on ground of irregularity —Continued. A report, if inconsistent or in conflict with the original decree, cannot be affirmed by the chancellor. As long as the original decree stands unmodified the subsequent proceedings must be in harmony with it. Should the master's findings be inconsistent with it, it is the duty of the court to set aside the report and refer it back to the master with further directions, even though no exceptions are taken to the same. Should the court, for any reason, deem the findings of the master correct, notwithstanding the original decree, 1 Gordon v. Hobart, Story, 243, Fed. Cas. 5,608. 2 Gore v. Poteet (Tenn. Ch.), 46 S. W. 1050. 3 Arnold v. Slaughter, 36 W. Va. 589, 596, 15 S. E. 250. 4 Harding v. Harding, 180 Ill. 481, 504, 54 N. E. 587. 5 Lang v. Brown, 21 Ala. 179, 56 Am. Dec. 244-249. on argument of the exceptions, the court should direct the report to stand over, and order that portion of the original decree containing the erroneous directions to be reheard.' But, if the chancellor deems the report erroneous, and stands by the original decree, it is his duty to either "direct the master to review his report, in order to conform it to the decree under which it is made, or to disregard it in toto, and order him to report under the original decree."2 VI. ATTACKING MASTER'S FINDINGS OF FACT. § 432. Exceptions to master's findings of fact-Definition — General principles.- Findings of fact are reviewed by the chancellor only on exceptions taken by the dissatisfied party. An exception, in the sense here used, may be defined to be a formal protest in writing against the conclusion of the master. Each finding is objected to separately, beginning with a recital of the conclusion of the master, as follows: "For that the master hath found," etc., and concluding, usually, with a statement of the exceptant's contention, beginning: "Whereas, the said master ought to have found," etc. This statement of what the exceptant thinks the master ought to have found is wholly unnecessary, as the chancellor is not limited to the suggestion made, but may adopt any ground of objection to the finding which, in his judgment, may seem right and proper, and the party himself is not thereby precluded from arguing any other ground which may suggest itself to him on the hearing. Where an exception to a report not only states that the master ought not to have reported as he has done, but suggests what he ought to have found, the court in allowing the exception, and referring it back to the master, does not adopt the conclusion suggested in the exception, but leaves the whole subject of the reference to be considered by the master, either upon the old evidence or upon further evidence which may be brought before him.3 This conclusion of an exception varies but little from that of the objections to a master's draft report, the latter concluding: "In all which particulars the said complainant (or de 1 Id. 2 Id. See also Turner v. Turner, 1 Dick. 313; s. C., 1 Swans. 156; 2 Daniell, Ch. Pr. 1501. 3 Livesey v. Livesey, 10 Sim. 331; Twyford v. Traill, 3 M. & C. 645. See Daniell, Ch. Pr. (6th ed.) 1316. fendant, as the case may be) objects to the draft of said report, and submits that the same ought to be varied and altered," while exceptions to the findings of a master usually terminate with: "Wherefore the said complainant (or defendant, as the case may be) doth except to the said report, and appeals therefrom to the judgment of this court." Exceptions are usually prepared by and must always be signed by counsel. Objections to a master's draft report and the exceptions filed upon the coming in of the report are substantially the same in form. Indeed, the terms "objections" and "exceptions" are frequently used interchangeably. When exceptions are taken, after objections have been made to a draft report and disallowed, the exceptions must conform to such objections, and, though different in form, they must be substantially the same." Indeed, it is the practice, generally, to prepare the objections in the form of the intended exceptions, and afterward, by an order of court, to convert them into exceptions." In case the objections, filed before the master to his draft report, are converted into exceptions, upon the coming in of the report, by stipulation of the parties and an order of court, which is the usual and customary practice," such stipulation and order may be in the following form:7 Stipulation. In the Circuit Court of the United States for the Northern District of Illinois, Northern Division. In the above cause it is hereby stipulated by and between the parties thereto that the objections heretofore filed before 13 Barbour, Ch. Pr. 507, 508. 2 Daniell, Ch. Pr. (6th ed.) 1316. 3 Brockman v. Aulger, 12 Ill. 277, 280; Pennell v. Lamar Ins. Co., 73 Ill. 306; Cox v. Pierce, 120 Ill. 557, 12 N. E. 194; Cheltenham Imp. Co. v. Whitehead, 128 Ill. 279, 285, 21 N. E. 569; Mech. Bank v. Bank of Bruns- "Copied from record. 118 Fed. 720. |