
    The Northrup National Bank, Appellant, v. The Webster Refining Company et al. (The Ætna Oil and Gas Company et al., Appellees).
    No. 17,961.
    syllabus by the court.
    
      Appeal — Report of Referee — Judgment—Motion for New Trial Necessary. To entitle an appellant' to a review of a judgment based upon the report of a referee and to attack the findings of fact it is necessary that a motion for a new trial should have been filed in the trial.court.
    Appeal from Allen district court.
    Opinion filed June 7, 1913.
    Affirmed.
    
      S. A. Gard, and Baxter D. McClain, both of Iola, for the appellant.
    
      G. A. Amos, of Humboldt, for the appellees.
   The opinion of the court was delivered by

Smith, J.:

The several assignments of error in this case are that the court erred’in approving findings of fact made by the referee and the conclusion of law drawn therefrom. No motion for new trial was filed.

Where a referee is appointed to take the evidence and report the facts in an action, the evidence is usually taken out of court and in the absence of the judge. In such case the court does not review the evidence, but renders judgment in accordance with the report of the referee unless objection thereto is made, and error can not be here predicated upon a judgment involving the correctness of the facts found as shown by such report, unless a motion for new trial has been filed and overruled. Section 305 of the code of civil procedure makes the same provision for a new trial where a judgment is based upon the report of a referee as when based upon the verdict of a jury or a decision of the court.

This court has no jurisdiction to determine the facts, but if it is claimed that the report of the referee of the facts, or of any material fact involved, is contrary to the evidence or unsupported by competent evidence, and the attention of the trial court has been challenged thereto Dy a proper motion for a new trial and such motion has been overruled, then the party against whom such ruling is made is entitled to a review of the case in this court.

The judgment is affirmed.  