66

§ 466. Pointing out the evidence. In some jurisdictions, notably in Alabama, Tennessee and in some of the federal circuits, the courts insist upon the exceptant pointing out in the exception itself the evidence relied upon in its support. In Alabama it is provided by Chancery Rule No. 94, that: "In filing exceptions to the report of the register, or any part thereof, it shall be the duty of the solicitor filing the same to note at the foot of each exception to conclusions of facts, drawn by the register, the evidence or parts of evidence he relies on in support of the exceptions, with such designation and marks of reference as to direct the attention of the court to the same; and if the opposing solicitor desires to do so, he can note in writing such other parts of the evidence as he may deem material to the inquiry. In considering such exceptions, the chancellor need not examine testimony not thus noted.” Under this rule exceptions taken to the findings of a master dependent upon testimony before him are properly overruled, unless taken and reserved as required by the rules of practice.' That is, the exception is to be overruled, unless it refers to the evidence, or parts of evidence relied upon in support of same, with "such designation, and marks of reference, as to attract the attention of the court to the same." Exceptions to the report of a register, which refer the court to the entire testimony of witnesses and the ledger accounts they produced, do not ply with the rule requiring the evidence or parts of evidence relied upon to sustain an exception to be noted at its foot, and

will not be considered.

2

com

Ten

In a leading case on the subject the supreme court of nessee lay down the rule as follows: "Exceptions to a report should be numbered; refer to the pages and particular items in the report excepted to; state briefly the grounds of excep tion, and refer to the particular pages of the depositions or documentary evidence relied upon, and not generally to a dep osition, which is often of great length, and relates to different subjects, and does not, perhaps, contain more than a single

1 Kilpatrick v. Henson, 81 Ala. 464, Crump v. Crump, 69 Ala. 156 = 470, 1 So. 187.

2 State v. McBride, 76 Ala. 51, 60; Mooney v. Walter, 69 Ala. 75; Mahone v. Williams, 39 Ala. 202, 224, 225;

Vau.

ghan v. Smith, 69 Ala. 92, 94; Pruitt

v. McWhorter, 74 Ala. 315.

Warren v. Lawson, 117 A 23 So. 65.

339,

sentence pertinent to the matter excepted to. This can readily be done with little trouble or inconvenience to the person who prepares the exceptions, and will save the court the intolerable labor of searching, as it is often otherwise required to do, through a large record, to ascertain the meaning of exceptions which should explain themselves. Each exception is in the nature of a separate suit, and should state the cause for which it is taken."1

In a case reported in Tennessee there were one hundred and thirty-five exceptions in all. From this number the court selected the following six as samples:

"To item 1, to cash of M. E. Cochran & Co., $442.27, because the proof shows that he received $449.534." "To item 2, cash of M. E. C. & Bro., $101.43, because it should be $144.90." "To item 7, cash of M. H. & Co., $401.47, because it should be $800.00." "To item 10, cash of M. H. & Co., $50.00, because not sustained by proof." "Item 11, cash of same, $401.46, for want of proof." "No. 12, cash of same, $100, because proof shows only $50.00."

Upon these exceptions, and similar ones, in the same case, the court say:

"Most of the exceptions are of the same character as these, without any intelligible statement of the ground of exception, the nature of the charges excepted to, or the character of the evidence by which the exceptions are sustained; and, in many particulars, the court might as well be referred to a table of logarithms, as to the matters contained in the master's report, or the exceptions thereto, and could as readily determine the case by such a reference as by those that are given."

$467. Pointing out the evidence - Continued.-In the federal courts there are many cases which hold that exceptions should set out or refer to that portion of the testimony upon which the exceptor relies. The following are given as samples of such rulings: Exceptions to the master's report are regarded so far only as they are supported by the statement of the master, or by evidence to which the attention of the court is called by reference to the particular testimony. Jeffrey v. Brown, 29 Fed. R. 476, and cases there cited; Taylor

1 Green v. Lanier, 61 Tenn. 662, 670, 671.

Mfg. Co. v. Hatcher Mfg. Co., 39 Fed. R. 440. The exceptions make no allusion to the evidence, whereas they should have set out that portion of the evidence upon which the exceptor relied." 1

In a case in the circuit court for the southern district of Georgia, a case involving something over $150,000, with a voluminous record and a lengthy master's report, to which there were forty-seven exceptions filed, the court say:

"Upon inspection of the record the court is at the very threshold of the hearing confronted with the fact that the solicitors for complainant have entirely failed to identify, specify or refer to the particular portions of the evidence relied upon to support the exceptions. The consideration of a few of the exceptions will illustrate the unnecessary labor it is now proposed to inflict upon the court by this imperfect method of procedure. For instance, exception 8: 'That the master crred in finding that there was no evidence before him that G. B. Lamar usually kept correct books of account.' Again, excep tion 20: That the master erred in finding that the expenses incurred by G. B. Lamar in collecting said cotton amounted to no more than $85,506.60.' Again, exception 21: 'That the master erred in finding that the preparation of the expense for the collection of said cotton due by the estate of C. A. L. Lamar did not exceed $25,644.48.' In this manner, and wholly without reference to the testimony, complainant's forty-seven specifications of error are made. Now, it is evident that in the discussion of all issues of fact, raised by either exception, the comments of the solicitors might take as wide a range as the entire record does, and the labor of considering the entire mass of testimony, relevant and irrelevant, in order to sift out that which is pertinent to the issue raised, would be imposed on the court. The labor of the court would therefore not be abridged by the reference, and the proceedings had before the master would be fruitless. The language of Mr. Justice Swayne, in Foster v. Goddard, 1 Black, 501, 506, referred

to in

the argument, that 'all that is necessary is that the exception should distinctly point out the findings and conclusion of the master which it seeks to reverse,' was directed only to

1 Cutting v. Florida Ry. & Nav. Co., 43 Fed. 743, 747.

the

question raised by the objection of the counsel in that case, viz. that 'such an exception is in the nature of a special demurrer, and that these are not so full and specific that the court can consider them.' To be sufficiently explicit to raise any issue of law is one thing; to point out the evidence relied upon to sustain an exception to a finding upon the facts is quite a different thing. The rule is one of practical utility, and is intended to narrow the range of investigation and consideration by the court to the evidence controlling the questions at issue, and if the solicitors will bear this purpose of the rule in mind, there will be little difficulty in preparing exceptions in accordance therewith. It is not necessary, in the spirit of this rule, to set out in extenso in the exception the evidence relied upon to sustain it, but the evidence must be so specified and referred to as to enable the court to understand its substance, and, if it is thought proper, to turn to it and ascertain its full import and effect without unnecessary labor and waste of time." 1

§ 468. Pointing out the evidence - Continued. The master is supposed to refer to the evidence contained in the record as the basis of his findings, and if counsel, who are dissatisfied with such findings, desire the court to examine evidence which, in their judgment, is sufficient to warrant the court in arriving at a different conclusion from that of the master, it is the business of the attorney to point out such evidence, to locate it in the record so that the court can easily turn to it, and see whether the contention of counsel is supported; but if the court is expected to begin at page one, and examine perhaps five hundred pages of testimony, in other words, to hunt through the record from end to end to find some evidence to justify the objection made by counsel, it is not surprising that the court should fall back upon the rule announced, or, to use as an illustration, the language of the court in the case of Jones v. Lamar, 39 Fed. 585, 587: "Solicitors for complainant say that they are unwilling to rely solely upon the evidence referred to by the master as the basis of his findings, and since they have specified nothing else, and since the court, under the rule in Harding v. Handy (11 Wheat. 103 and 126), will not consider

Jones v. Lamar, 39 Fed. 585.

testimony in support of the exceptions not referred to in the report of the master, or brought to its attention by proper reference in the exceptions, exceptors are unable to proceed."1

In another case it is said that exceptions are to be regarded only so far as they are supported by the special statements of the master, or by evidence which must be brought to the attention of the court by reference in the exceptions to the particular testimony relied upon to set the report aside. Where the report of the master makes no special statement of the evidence, and the exceptions offered are assignments of alleged error, unsupported by reference to the evidence as the rule requires, the findings and decree of the lower court will be affirmed. In the case of Harding v. Handy, it seems that all the court means by "pointing out" is, that the party excepting shall cause the master to report to the court that portion of the testimony bearing on the issue raised, instead of reporting the whole and allowing the court to grope for it.3

The practical utility of the rule commented upon in Jones v. Lamar rests upon three grounds:

First. The exception should point out specifically the errors upon which a party relies, that the opposite party may be apprised of what he has to meet.

Second. That the master may know in what particular his report is objectionable, and may have an opportunity of correcting the same.

Third. To save the court from the necessity of being obliged to rehear the whole case upon the evidence, as the main object of a reference to a master is to lighten its labors in this par ticular.5

The last reason assigned is the most important because, as said in the same case: "Cases are referred to the master, not on account of his superior wisdom, but to economize the time