Opinion
Decided December 2, 1924.
An exception to the denial of a motion that the evidence at a hearing before a referee be reported cannot be sustained if the evidence was not taken stenographically and cannot be reported, or if it appears that the moving party did not at the trial ask for any finding of fact. Motions for a trial of the case by the court, and that it be recommitted to the referee for further hearing, are solely for the determination of the trial court, and their denial raises no question of law.
CASE, for breach of warranty upon the sale of a horse. The case was sent to a referee, who found the facts, and that the defendant was not guilty.
The plaintiff excepted to all the findings of the referee, and moved that his report be set aside and recommitted to him to hear further evidence; that the evidence be reported to the court; and for a trial of the case by the court.
The motions were denied and the plaintiff excepted. Judgment was rendered upon the referee's report, to which the plaintiff excepted.
Transferred by Sawyer, J.
Henry D. Yeaton, for the plaintiff.
Smart Smart, for the defendant.
The findings of fact by the referee were sufficient to support his finding that the defendant was not guilty. Whether the evidence was sufficient to warrant the findings is not before this court, as the evidence has not been transferred.
Relative to the exception of the plaintiff to the denial of his motion that the evidence be reported, the court states in the transferred case that the evidence presented to the referee was not taken by a stenographer, and that it could not be reported; and furthermore that it does not appear that any motion or request for the finding of any fact was made by the plaintiff at the trial. The latter fact, as stated by the court, warrants the ruling made by the court. Moynihan v. Brennan, 77 N.H. 273, 274; Carpenter v. Carpenter, 78 N.H. 440, 444; Barker v. Company, 78 N.H. 571, 572.
The motions of the plaintiff for a trial of the case by the court, and that the case should be recommitted to the referee to hear further evidence, were solely for the determination of the trial court, and their denial raises no question of law. LaCoss v. Lebanon, 78 N.H. 413, 417, and cases there cited; Manchester Amusement Co. v. Conn, 80 N.H. 455.
The findings of the referee are adequate to support a verdict and judgment for the defendant. As the evidence was not transferred, the exception to the judgment presents no question for this court.
Exceptions overruled.
All concurred.