
    No. 1340.
    Ross v. Linder.
    November Term, 1882.
    
      February 15th, 1883.
    
      Bobo & Carlisle, for appellant. J. S. R. Thomson, contra.
   Opinion by

Mr. Chief Justice Simpson,

This was an action on a contract for the payment of board. By consent, the case was referred to a referee to hear and determine all the issues, and report the same to the court with his recommendations. He reported in favor, of plaintiff.. On defendant’s exceptions, the Circuit judge (Fraser) dismissed the complaint, upon the ground that the evidence did not support any contract, or, if any, that it was a joint contract made by defendant and the wife of the plaintiff, and that the action must be brought jointly against those two. On appeal. Held— ’

1. That the case being strictly a law case tried by the court, findings of fact by the Circuit judge cannot be disturbed by this court. In this connection the court say: “A question might arise in such case whether a Circuit judge could do more than apply the law to the facts as found by the referee — whether the referee has not been substituted for the jury, his finding being in the nature of a special verdict, with the power on the part of the Circuit judge to hear a motion for a new trial as in ordinary cases of jury trial, or to pronounce judgment as the law might demand. But these questions are not raised. In fact, the consent to the reference may in this case preclude them, as that consent embraced the condition that the referee should report his findings, with his recommendations, to the court, thereby, impliedly at least, agreeing that the court should be the final arbiter below.”

2. The contract being joint, the dismissal of the complaint followed as a necessary consequence. The objection of a want of parties could not be taken by demurrer, for the defect of parties did not appear on the face of the complaint, nor was it necessary by answer to do more than meet the case stated in the complaint.

Judgment affirmed.  