Exchange Fire Insurance v. Early

It appears to me that the chief irregularity in the proceedings is the disposition made of the answer of M. J. Early, which put in issue all the material averments of the complaint; that defendant did not appear at the trial and the plaintiff was entitled to his inquest. The court did not dispose of the issues raised by the answer, for there was no trial and there are no findings, nor were the issues referred. The order of reference entered was such as is proper where there is no answer, or the general answer of an infant by its guardiian (Rule 63, Code, secs. 1214, 1215, 1216). Where an issue is raised by the answer, it mast be tried by the court or the issue must be referred. There is no other way to dispose of it in actions not triable by jury (Code, secs. 1008 to 1013, both inclusive). The inquest must be taken by the court if the defendant fails to appear at the trial. If not so taken, the whole issue should be referred. In this case it seemed to be assumed that because the defendant, answering, failed to appear, the case stood in the same position as if no-answer had been interposed.

This not being a case embraced within the provisions of the sixty-third rule, it is.perhaps not necessary to decide whether, under the new Code, the referee appointed pursuant to that rale must take the oath prescribed in section 1016. That section makes it imperative upon the referee to take the oath when he is appointed, as prescribed in the previous sections (1008 to 1015, both inclusive). Section 1015 prescribes, among others, for a reference by the court where it is neces*285sary for the information of the court, and this in terms covers the cases mentioned in Rule 63. The references provided for in section 1015 are all exclusive of trials of issues, and the referee in every case is bound to take the oath unless it be expressly waived, Where there are infant defendants or the defendants fail to appear, it cannot be waived.

The reference in the case before me, not being one contemplated by Rule 63 (because of the answer of M. J. Early putting the averments of the complaint in issue), was, if properly ordered, so ordered in pursuance of section 1015, and the referee should have taken the prescribed oath.

• The judgment, as well as the sale under it, must be set aside, with the order of reference.