Burke v. . Turner

The clerk of this court has stated the account and made report thereof as directed in the opinion delivered at the last term, and modified by a further opinion at the present term. To this report no exception is taken, and it appearing to be just and acceptable to the parties, the court approves it.

Ordinarily, a judgment should be entered at once for the sum so ascertained to be due the feme plaintiff, but her counsel bring to the attention of the court an item of charge of $1,628.69, with interest on the same from the first of September, 1866, which they insist was admitted by the defendants to be due — was charged against them in the account as taken in the court below, and to which charge the defendants took no exception; and which they further insist ought to be added to the sum now appearing to be due the feme plaintiff.

The defendants, on the contrary, earnestly contend that they did not admit the item to be due, and that the exceptions to the report taken in the court below embrace it. They insist that it is of a real estate fund in which the former guardian of the feme *Page 590 plaintiff had and has a life estate as tenant by the courtesy, and for which they are in nowise liable.

We are unable to determine satisfactorily, from what appears in the record and the explanations and arguments submitted by counsel, whether or not the feme plaintiff is entitled to recover the item of charge in question. We are left in doubt and perplexity as to the source from which it comes, and do not feel at liberty to dispose of the matter without further enquiry.

It is strange indeed that so large an item in the account was not thought of and considered in the repeated and earnest contests growing out of the exceptions: that it was not, can only be explained and excused upon the ground that the account has been a complicated one, and the taking of it attended with confusion.

The plaintiffs now contend that they thought it was admitted and settled in their favor. The defendants on the other hand insist that this claim has not been insisted upon until the present time. There seems to have been mutual mistake and misunderstanding.

In this state of the matter it must be referred to J. B. Connelly to enquire and report at this term of the court from what source the item of charge mentioned and referred to, came; and especially, whether it was part of the real estate fund in which the former guardian of the feme plaintiff had a life estate as tenant by the courtesy, or what part of the same, if any, came into the hands of the defendants. It is so ordered.

In obedience to the above directions, the referee submitted his report at this term, when the following ruling and judgment were made: