Mr. Chief Justice Bean
delivered the opinion.
Tliis is an action at law to recover money. After the issues had been made up, it was referred to a referee to “make and report findings of fact and conclusions of law,” because the trial would involve the examination of a long account on both sides. The evidence was taken by the referee, but he failed or neglected to make and report any findings of fact or conclusions of law, and some three y^ears after his appointment he was ordered by the court, on plaintiffs motion, without notice to the defendant, to return the record, including the testimony taken before him, which was done accordingly. The court thereupon, against the protest of the defendant, and over its objection and exception, proceeded to a trial of the cause without the intervention of a jury. Findings and judgment were made and rendered in favor of the plaintiff, and defendant appeals.
1. A trial judge has no authority to act as a referee in a law action without the consent of parties (Dinsmore v. Smith, 17 Wis. 20), nor to try such an action unless a jury is waived in the manner provided by statute: American Mortg. Co. v. Hutchinson, 19 Or. 334 (24 Pac. 515); Wilkes v. Cornelius, 21 Or. 345 (23 Pac. 473).
2. The constitution guarantees to every suitor in a law action the right to a trial by jury, and he cannot be deprived of this right by the court on its own motion, or that of his adversary, unless the issues involve the examination of a long account. In the latter case an action may be referred to a referee, “to hear and decide the whole issue, or to report upon any specific question of fact involved therein” (B. & C. Comp. § 161); but in such case the conclusions of the referee are to be deemed and' considered as a verdict of a jury: B. & C. Comp. § 168. A litigant in a law action, therefore, is entitled, as a matter of right, to have the facts determined by a jury, or, if the cause is referable, the conclusions of a trior of facts, whose findings shall .have the samp [479]*479force and effect. The court may set aside the findings of a referee, and order a new reference, or find the facts and law itself, but it can only do so unde* the same circumstances in which it has authority to set aside the verdict of a jury (Merchants’ Nat. Bank v. Pope, 19 Or. 35, 26 Pac. 622; Liebe v. Nicolai, 30 Or. 372, 48 Pac. 172); and where the evidence is conflicting, and the credibility of witnesses is involved, the referee’s findings of fact will ordinarily not be disturbed unless palpably wrong: 17 Enc. Pl. & Pr. 1055. The verdict of a jury and the findings of a referee in a law action stand upon the same footing, and a litigant can no more be deprived of the benefit of the one than of the other. The court may set aside the verdict of a jury in a proper case, and order a new trial, and it may, for like reasons, set aside the conclusions of a referee, and find the facts and law itself; but it has no more right to assume the duties of a referee without the consent of a party than it can that of a jury. If the referee unreasonably delays his report, the court may direct him to speed the case, and, if he neglects to do so,, may perhaps force a report by attachment, or it may remove him, and appoint another; but it cannot itself assume to discharge his duties. If it could lawfully do so, it could deny to litigants the benefit to be derived from the findings of the trior of facts, and the presumptions which attach to such findings.
It follows from these views that the court was in error in trying the cause over the objection of the defendant, and for such error the judgment is reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed .
Free access — add to your briefcase to read the full text and ask questions with AI