Third National Bank v. McKinstry

A trial is a judicial examination of the issues between the parties. Code, § 252. Such an examination may be had without being followed by a conclusion, determination or verdict, e. g. when a jury disagree, or a juror is withdrawn, or when a complaint is dismissed. But when the court refuses to examine the issues, and of its own motion sends the case to a referee, it would be a stretch of common sense and of law to hold that there had been a trial. What issue of law or of fact was judicially examined by such a proceeding? And yet it is only for a trial, so defined that a trial fee is allowed. Code, § 307, subd. 4. ISTone of the cases cited by the appellant support his appeal.

We think the order appealed from should be affirmed, with §10 costs.

Order affirmed.