
    (March 9, 1891.)
    WALKER v. CAMPBELL.
    [26 Pac. 123.]
    Referee — Findings op Fact — Court Setting Aside Findings. — Where a cause has been submitted by agreement of parties, and on order of the court to a referee.to hear the testimony and report his findings of fact thereon, it is error for the court upon its own motion to set aside such findings, make findings of fact of its own, and enter judgment thereon.
    (Syllabus by the court.)
    APPEAL from District Court, Bingham County.
    J. T. Morgan and T. M. Stewart, for Appellant.
    The findings of a referee have the effect of a special verdict. {Kerr v. McGwire, 28 N. Y. 449; Brainerd v. Dunning, 30 N. Y. 216; Peabody v. Phelps, 9 Cal. 213-225; Brady v. Brown, 20 Cal. 521; Hams v. Railroad Go., 41 Cal. 394, 405; Lyons v. Harris, 73 Iowa, 292, 34 N. W. 864.) Findings of a referee are equivalent to findings of court. {Thompson v. Patterson, 
      54 Cal. 542-546.) Findings of a referee cannot be amended or added to. (Headley v. Bead, 2 Cal. 325.) A finding of a referee cannot be set aside by mere volition ol the judge. (Goodrich v. Mayor etc., 5 Cal. 430; Bassett v. Mining Co., 15 Nev. 298.) Judgment must conform to report of referee. (Sloan v. Smith, 3 Cal. 406; Grayson v. Guild, 4 Cal. 122; Phelps v. Peabody, 9 Cal. 213; Calderwood v. Peyser, 31 Cal. 337.)
    J. Ed. Smith and Hawley & Reeves, for Respondent.
   If there is any evidence to support the findings, they will not be disturbed.

HUSTON, J.

This is an action for the dissolution of a co-partnership between plaintiff and defendant, and for the adjustment of the accounts of the firm. The pleadings in the case are various, multitudinous and voluminous, too much so in fact to be inserted; nor is it necessary they should be, in the view we take of the case. The record, aside from the copies of the pleadings, is incomplete and unsatisfactory. Suffice to say that on the tenth day of December, 1887, the ease was, upon agreement of parties, by order of the court, referred to a referee “to hear the testimony and report his findings of fact thereon.” On the fourteenth day of February, 1888, the referee filed his findings of fact, and on the twentieth day of July, 1888, the referee, by leave of the court, made and filed additional findings. It does not appear from the record that any exceptions were taken to the findings of the referee, or that any motion for a .judgment was made. The next entry upon the record is a motion by the attorney for the plaintiff to modify and set aside the findings of the court made and filed on the second day of August, 1889. We next have the amended and supplemental “findings by the court,” from which it appears that the court had previously made findings of fact in the case, but that, “the attention of the court having been called to the necessity of a review of its previous action, such review has been had,” etc. These last findings by the court were filed on February 6, 1890, and judgment entered thereon in favor of the defendant, from which judgment this appeal is taken. The record does not show any motion to amend or set aside the report of the referee, nor does it appear that any motion was made for a resubmission. The record simply shows that the court, upon its own motion, or of its own volition, assumed to set aside the findings of the referee, and make findings of its own, and enter judgment thereon. This action of the district court, we think, was error. In the making up of the record there may have been omissions; but of this we cannot, of course,, take cognizance. We must deal with the case as it is presented to us by the record. We can find no warrant, either in the statutes of the state or the decisions of the courts, for the action of the district court in this case in setting aside the findings of the referee. The judgment of the district court is reversed and the cause remanded with directions to the district court, to make conclusions of law, and enter judgment upon the findings of the referee.

Morgan, J., having been of counsel, took no part in the hearing or decision of this case.

Sullivan, C. Jv concurs.  