
    The State, ex rel. Klorer, v. Fimple, Judge.
    
      Bill of exceptions — Mandamus to compel judge to sign and allow same — Trial by referee and report.
    
    Mandamus will not lie to compel a judge of the court of common pleas to sign and allow a bill of exceptions upon the overruling of exceptions to the report of a referee and the rendering of final judgment thereon, the referee having been appointed to determine the issues in the 'action and to report to the court all the testimony with his findings of fact and conclusions of law, and his report and the final judgment thereon showing his compliance with the order of his appointment. The record, without a bill, presents to the court of appeals all questions which were presented in the court of common pleas.
    (No. 14734 —
    Decided November 17, 1914.)
    In Mandamus.
    Issues of fact were joined in the court of common pleas in an action in which the relatrix and The Steiner Coal Company were adversary parties. The court referred the case to a referee for trial by the following order: “On consent of all parties in the above-entitled action this cause is referred to James H. Robertson, who is appointed referee herein, and is directed to determine the issues here-: in, to take the testimony of witnesses in writing, and report such testimony and findings of fact and conclusions of law to this court without unneces^ sary delay.” Pursuant to this order, the referee tried the case upon the evidence and announced his findings of fact and conclusions of law. Both the relatrix and the Stepper company filed motions for a new trial before the referee, which were overruled, she excepting. Exceptions were taken before the referee, but no bill of exceptions was tendered to him or signed by him. The referee then made his report pursuant to the order of court, reporting the testimony in full, together with his findings of fact and his conclusions of law. The relatrix filed exceptions in the court of common pleas to the referee’s findings as to both law and fact, and the Steiner company filed a motion to confirm the report of the referee. In the court of common pleas, the defendant in this action sitting as judge thereof, the exceptions of the relatrix and the motion to confirm the report of the referee were heard, the exceptions were overruled and the motion to confirm was sustained “on the pleadings, report of the referee, James H. Robertson, and the evidence taken by said referee and filed by him in this cause in accordance with the former order of this court.” And thereupon the court of common pleas rendered judgment in favor of the Steiner company and against the relatrix. She thereupon filed a motion for a new trial, which was overruled. She then tendered to the defendant for his signature and allowance a bill of exceptions embodying the report of the referee and reciting that all the evidence which it contained had been introducd into court by the parties for the determination of the issues joined in said case. By his endorsement thereon the defendant declined to sign and allow said bill of exceptions because he was without authority so to do. By her petition in the present case the relatrix seeks a peremptory writ of mandamus compelling the defendant to sign and allow the' bill. The defendant answering sets out in detail the proceedings in the court of common pleas and before the referee and the substance of the report, which have already been given with sufficient definiteness in this statement. In his answer the defendant alleges his belief in the want of his authority to sign a bill of exceptions under the circumstances, and further alleges that he has no personal knowledge whatever of anything which transpired before the referee.
    
      Messrs. Pomerene, Ambler & Pomerene, for relatrix.
    
      Messrs. Webber & Turner, for respondent.
   By the Court.

That the relatrix is entitled to a review in the court of appeals of the judgment of the court of common pleas in the cause in which she seeks the allowance and signing of this bill of exceptions is not questioned. The question is, Why is the bill necessary to such review, or in what manner would it facilitate it? The authority for the reference and the proceedings thereunder are found in Sections 11475 to 11486, General Code. Attention to the provisions of those sections would seem to determine some questions about which counsel apparently differ. The referee is authorized to summon and compel the attendance of witnesses, to administer oaths and grant adjournments, and it is then comprehensively enacted that “a trial by refereees shall be conducted as if by the court.” His decision may be excepted to and reviewed as in a trial by the court, and his decision stands as the action of the court, upon which judgment may be entered as if the court’ had tried the action, as was done in this instance. The only provision for a bill of exceptions in cases so tried is in Section 11484, General Code, that “The referees shall sign any true exceptions taken to an order or decision by them made in the case, and return it with their report to the court.” This provision is obviously necessary to bring before the court questions arising before a referee who reports only his conclusions of fact and law, his conclusions of fact having the effect of a special verdict, for in such case without a bill signed by him neither the propriety of his procedure nor the correctness of his conclusions of fact could be determined by the court. But why a special bill of exceptions should be signed, even by the referee in a case referred, as was this, to take the testimony of witnesses in writing and report it with his findings of fact and conclusions of law, is not apparent. But no bill of exceptions was taken before the referee, before whom the case was tried as to the court, nor does any appear to have been tendered to him. The allowance and signing of the bill by the judge is sought in this action. The function of a bill of exceptions is to bring upon the record matters material to further judicial inquiry which would not otherwise appear. The trial judge here naturally and properly answers that he has no personal knowledge respecting the proceedings before the referee. For information upon that subject he was confined to the referee’s report. That report was before him as the sole basis of his action in overruling exceptions and in rendering judgment. It is equally available to the court of appeals. It is to be observed that in this case the report of the referee was confirmed and judgment rendered upon it and upon it alone. There could, therefore, have been no evidence whatever before the court of common pleas that was not embraced in the report of the referee, already a part of the record. This bill of exceptions, if signed, would add nothing to the record for the information and action of the court of appeals. The writ of mandamus will not be issued to compel the doing of a vain thing.

Petition dismissed.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.  