
    Thomas Lawson v. Thomas S. Bissell.
    An appeal from the common pleas to the district court vacates the report of referees under the code; and the case stands for trial as if no reference had been made below.
    In error to tbe district court of Scioto county.
    The facts are as follows:
    July 27,1853. Bissell brought a civil action against Lawson, in Scioto common pleas, to enforce the specific execution of an alleged' parol contract, for a ninety-nine-years’ lease from Lawson to him, and also to recover certain supposed profits, alleged to have been derived by Lawson, from the premises covered by the contract.
    August 22, 1853. Lawson answered, denying the alleged contract, or Bissell’s possession or performance, and also his claim to the profits ; averring that Bissell had had possession for a time as-his tenant, under a different contract,but had abandoned the same, *and gone away without paying his rent, and, by way of' counter-claim, demanding a judgment for the same.
    February 24, 1854. By consent, it was ordered by' the common* pleas, “that this cause, and the issues involved therein, be and stand referred to J. W. Collings, Esq., to state the accounts of the parties, to examine the parties on oath touching the issues, and to hear and report to the court upon all the questions involved in this cause. It is further ordered, that said roferee report to this court the evidence by him taken, and the facts found, and the conclusions-of law, separately.”
    November 4, 1854. The referee made his amended report (his first report having been referred back to him for amendment, etc.);, to which report Lawson excepted.
    May 25,1855. The exceptions to the report were overruled, and the same adopted and in all things confirmed. And thereupon judgment was given for Bissell, according to the findings of the-referee, and substantially as prayed for in the petition.
    From this judgment Lawson appealed to the district court.
    In the district court no order of reference was made ; nor was any testimony ever taken or heard in the cause, while pending in> either court, save that taken and heard by the referee of the common pleas.
    
      The district court pi’oceeded to hearing upon the exceptions to ■the report of the referee, made to the common pleas, adopting and confirming said report, and, on final hearing, finding as the referee had found, and giving judgment as the common pleas had done.
    Dawson seeks to reverse this judgment.
    
      A. 6r. Thurman (with whom were Moore & Davis), for plaintiff •in error, insisted that:
    I. The district court erred in giving judgment upon the finding ■of the referee of the common pleas, because his report was vacated by the appeal.
    A referee’s report stands either as the decision of the court to which it is made, or as a special verdict. Code, sec. 283. It has no higher dignity, and, like them, is vacated by an appeal.
    * Again: It is the policy of our law to give a party two trials —as well upon the facts as the law. Swan’s Stat. 516, 717; 1 Ohio St. 173; Ib. 511; Ib. 604; 3 Ohio St. 366; Ib. 543; 4 Ohio St. 210.
    But, if a referee’s report is not vacated by an appeal, a party is deprived of two such trials.
    The general construction has been that it is vacated.
    II. If the court gave judgment — not upon the findings of the referee, but upon what purports to be the testimony taken by him — ■ it erred.
    1. That was'not testimony, but merely the referee’s notes — and there is no pretense of any other testimony.
    - 2. Their return, by the referee, was unauthorized by law and inconsistent with the code.
    3. If they could be looked at at all, it was only by the common pleas, when considering the exceptions to the report.
    4. They fell with the appeal.
    III. An “exception” to the judgment of the court was not necessary.
    The code only gives an additional mode of taking an exception, to wit, by journal entry. It does not require an exception where a bill of exceptions was not necessary under the former practice. Hence, exceptions are necessary only:
    1. To bring some fact upon the record which otherwise would not appear in it; or,
    2. To save some point which otherwise would be waived by the subsequent proceedings; or,
    
      3. To call tbe attention of the court — while the proceedings are in fieri — to some accidental error, or erroneous interlocutory ruling, in order to afford the court an opportunity to correct it.
    The first and second of these rules manifestly have no application to this case. Neither has the third, for it applies to interlocutory matters simply — never to final judgments.
    Suppose, for example, that the record shows that there was no cause of action — or that the proceedings were coram non judice— or that a district court rendered judgment upon the findings of *the common pleas — or, as in this case, rendered judgment without testimony, verdict, subsisting report of referee, confession, or default — are such judgments intangible if not excepted to when rendered? Surely not.
    IT. If an exception were necessary, the exceptions to the report were sufficient. • They were a standing exception to any judgment that might be rendered on that report.
    The code is to be liberally construed to promote justice (sec. 2), and this court has said that, in code proceedings, it “will look, at the substance of things, regardless of mere names.” 6 Ohio St. 227.
    
      Glover, for defendant in error.
   J. R. Swan, J.

Whether the report of referees is vacated by an appeal is not settled by any provision of law.

The code must be construed upon this question with a view to the laws in force relating to our system of practice.

The effect of an appeal of a cause tried by a jury is to vacate the submission to the jury, the verdict, and judgment; and the district court proceed in the action appealed, as if there had been no trial in the common pleas.. So, if the issues are submitted to the court of common pleas, and verdict and judgment rendered by the court, an appeal vacates the verdict and judgment.

Instead of submitting a case to a jury or the court, the code provides for a third mode of deciding the issues of fact and law: and this is by referees. The referees are substituted for the court and jury; and their province is to decide the facts of the case, if the facts only are submitted; or both the facts and the law of the case, if both are referred. Code, sec. 283. The trial before referees is oonducted in the same manner as a trial by the court on submission. The evidence is not to be reduced to writing. All such exceptions, as could be made in the progress of a trial before the-court, may be taken by either party in a trial before referees; and it is only in case an exception is taken, that so much of the testimony as may be necessary to give point and ^effect to the exception must be embodied in the bill of exceptions. When the reference is to report facts only, the report has the effect of a special verdict; if the reference is of the facts and law, the facts and the conclusions of law are stated separately, and the report stands as the decision of the court, and judgment maybe entered thereon as if the action had been tried by the court. The decision of the referees, however, may be reviewed by the court.

These provisions of the code show very clearly that while the trial before referees is subject to the review and revision of the court ordering the reference, it is a substitute for a trial in court. The finding of the facts is, in effect, the special verdict of a j.ury. The conclusions of law of the referees stand as the law decision of the court; and if not set aside, a judgment follows of course.

Now, shall a special verdict of a jury, and the decision of the court thereon, be at once vacated by an appeal, and the report of facts and conclusions of law by referees be held intact on appeal? We can perceive no good reason for such a distinction. If it be deemed necessary for the ends of justice, that a suitor should be entitled, on his own mere motion, by appeal, to two jury trials, to determine the facts of the case, he ought not to be concluded by facts found by referees, when their finding is'a substitute only for, or takes the place of, a single jury trial. The unnecessary expense and delay growing out of a vacation of the report is certainly a very pressing reason against another trial of the facts in the district court; but this reason is equally formidable where there has been a trial and a special verdict of a jury in the court of common pleas.

The report of referees is vacated by an appeal; and the case stands for trial in the district court as if no reference or report had been made below.

The judgment of the district court must be reversed.

Bartley, C. J., and Brinkerhoee, BoWen, and Scott, J.J., concurred.  