Roberts v. Cass

i. pbactice: Judgment in° vacation. This action, on the second of April, 1868, was referred by order of the court; the referee to try the eaase and make report, and judgment to be rendered upon the report as of the term at wbich the reference was ordered. The order of reference does not show whether it was made upon consent of the parties, but it is so stated in the report of the referee. On the 26th of May, 1868, the referee filed his report, finding in favor of plaintiff $158.65 upon the claim, Avhich is the foundation of the suit, and judgment, on that day, was rendered thereon. Defendant appeals.

*226The assignment of errors relates to the findings of law and facts by the referee, and the objections raised we are asked to consider.

No exceptions appear to have been taken to the report of the referee or the judgment rendered thereon. Eev. § 3095. We cannot therefore review the cause. See Phipps v. Penn, 23 Iowa, 30; Norton v. Swearengen, 19 id. 566; and cases in almost every volume of the reports. But it is insisted that, as the judgment was rendered in vacation, defendant had no opportunity to take exceptions, and therefore the rule should not apply in this case. We do not think this position correct. Upon the filing of the report of the referee defendant could have excepted thereto as well in vacation as in term, and, if an objection was necessary to the judgment, it could have been made at the time or after it was rendered. If these exceptions and objection had been made and brought to the attention of the court below, it is to be presumed that, if they had been well taken, the error’s complained of would have been then corrected.

a__ ment of errors. It is also insisted that the rendition of the judgment in vacation, upon the report of the referee, without notice to defendant, is erroneous. The objec^o;Q -g no^ made in the assignment of errors, and is first raised in the written argument of defendant, in reply to the argument of plaintiff’s counsel. Under these circumstances we cannot consider it.

Affirmed.