Weier v. Thorne

207 N.E.2d 568, 2 Ohio App. 2d 167, 31 Ohio Op. 2d 271, 1965 Ohio App. LEXIS 592

• Court: Ohio Court of Appeals
• Decided: May 12, 1965
• Docket: 350
• Status: Published

Opinions

Fess, J.

This is an appeal on questions of law and fact from a finding and judgment of the Common Pleas Court in favor of defendant in an action brought by the plaintiff for an accounting by the defendant of his operation of a boat marina owned by plaintiff and managed by the defendant as manager from February 2, 1959, to October 9, 1962.

In his petition, after reciting the circumstances relating to the employment of the defendant, plaintiff alleges that defendant performed work for various boat owners and received as a result thereof sums of money in amounts not ascertainable by the plaintiff; and that defendant failed and refused to make a full, complete and proper accounting of his stewardship of plaintiff’s business establishment, so that the plaintiff might be able to determine what moneys are due and owing to him from the defendant and whether or not defendant has complied with the requirements as to contracting indebtedness. Plaintiff prays that defendant be compelled to account as to all transactions during the time he functioned as operator for plaintiff of his business and that plaintiff may have judgment for such sums as shall be found due upon such accounting.

Incident to the appeal, appellant, plaintiff below, designated as evidence which he elected to present upon the appeal the transcript of the testimony and exhibits received upon the trial in the Common Pleas Court, and did not elect to take additional testimony or request the appointment of a master or referee for such purpose.

The cause came on to be heard upon evidence adduced in the trial court and the exhibits attached to the transcript of the proceedings before the Common Pleas Court. During the course of appellant’s argument upon the appeal appellant’s counsel suggested that the case was such as should require its reference to a referee for an accounting. At the conclusion of the argument the court granted leave to the appellant to make written application to the court for the appointment of a referee to whom the case might be referred together with a memorandum in support of the necessity for such appointment and reference. Appellee has filed a memorandum contra such application.

Although there is no statute conferring authority upon a Court of Appeals to refer a chancery matter to a referee, the court has inherent power in its discretion to refer a case to a referee to take testimony, to make findings of fact and report his conclusions of law to the court. Dillon v. City of Cleveland, 117 Ohio St. 528; Toulmin v. Becker, 94 Ohio App. 524; In re Thomas, 107 Ohio App. 114. The purpose and usefulness of references lie in their effect to relieve the courts of work and thereby to expedite business and to facilitate the administration of justice in the general interest of the public by relieving the court of detail work. One of the prime reasons for ordering a reference in a chancery case is that under ordinary conditions the machinery of a court, particularly a Court of Appeals, is not adapted to the hearing of controversies presenting intricate questions of bookkeeping, or extending into multifarious details, while the less formal procedure before a referee will afford the largest possible scope of inquiry. Of. 47 Ohio Jurisprudence 85, References, Section 3.

There seems to be a misconception of the efficacy of the procedure before a referee for an accounting. A referee is not an investigator or detective who ferrets out facts. A controversy is referred to him to hear evidence and make findings of fact and conclusions of law to be reported to the court for final decision. The proceeding does not assure a party a finding in his favor any more than a trial by the court. Somewhat like a judge he presides at a hearing where evidence is adduced by the parties pro and con upon examination by counsel. Neither a judge nor a referee may force a party to make admissions except by way of cross-examination or by discovery proceedings.

In the instant case the plaintiff made no request in advance of trial to the Common Pleas Court for reference of the issue to a referee. He had his accounting in the Common Pleas Court, by way of cross-examination of the defendant, and the examination of such other witnesses as he thought might throw some light upon the issues presented, including the accountant of the plaintiff to whom defendant made periodic reports of his operations, and an independent accountant employed by plaintiff to whom such books and records as defendant purportedly had were submitted for examination. To a majority of this court it appears that the reference of the case at this time to a referee would essentially involve a retrial of the case without substantial benefit accruing to either party. Furthermore, the plaintiff had the opportunity of making application to this court for a reference at the time he elected to present the evidence adduced in the trial below as the evidence upon which his appeal would be determined. His application for such reference during arguments on the merits was made too late and therefore is overruled.

Upon review of the evidence adduced upon this appeal on questions of law and fact a majority of the court find, as did the trial court, in favor of the defendant and enter judgment accordingly.

Judgment accordingly.

Smith, J., concurs.