Kimball v. First Baptist Society

68 Mass. 517

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1854
• Status: Published

Opinion

Bigelow, J.

We have not found it necessary to consider the various objections raised to the competency of the auditor’s report as evidence in behalf of the plaintiff in this case, because we are of opinion that they are not now open to the defendants. It appears that the case was sent to the auditor, without objection on the part of the defendants; that they appeared before him, and raised no objection to his authority or power to hear the parties, to examine their vouchers and evidence in the case, state their accounts, and report the result of his investigation to the court; that, on the contrary, they proceeded before the auditor to a full hearing of the case, examined the witnesses produced on the part of the plaintiff, introduced testimony in their own behalf, and interposed no objection to the regularity of the proceedings, or to the jurisdiction of the auditor to hear and report on the case made by the parties, until after the return of the report into this court. Under such circumstances, we think it is too late for the defendants to object to the competency of the auditor’s report on the ground that the case does not corns within the class of cases included in the statute authorizing the courts to appoint auditors. If they intended to rely on any such objection, it should have been raised before the court, when the motion was made to send the case to an auditor; or, if not made then, it should, at the latest, have been raised before the auditor himself, before he proceeded to hear the case. It was in its nature a preliminary objection, and should have been stated in the outset. By omitting to take the objection seasonably, it must be considered as waived. Otherwise, it would be in the power of a party to lie by, and take his chances for a favorable result of a hearing before an auditor, and if it happened to be adverse to him, then to defeat the whole proceeding, delay the trial of the case, and, after large expenses had been uselessly incurred, to turn a party back to the same point from which he started. Such a course of practice would be entirely inconsistent with the regular course of business in courts of justice, and with good faith on the part of counsel and parties in the conduct of cases.

The specific objections, raised by the defendants to the rulings of the auditor in his report, will more properly arise at the trial of the case, after the report shall have been introduced as evidence. The judge, who shall preside at the trial, will reject such parts thereof, if any, as shall seem to him incompetent, and if either party shall then be aggrieved by his rulings, they can be revised in the usual manner. Case to stand for trial.