This is a suit on a partnership contract with prayer for an accounting, in which defendant in error was plaintiff, and plaintiff in error was defendant. The parties will be referred to as they appeared in the lower court.
The defendant answered by a general denial, and by cross-petition pleaded certain accounts, and asked for judgment against the plaintiff. A referee was appointed, over the objection of the defendant, to hear the evidence, and make a report of his findings to the court. The referee did not report at the time designated in the order making the appointment, and the time for making his report was duly extended. He did not report within the time of the extension; but counsel stipulated in writing that he might file his report out of time, and specifically waived all objections *Page 690 to the fact that his report was filed out of time. He found the defendant to be indebted to the plaintiff in the sum of $2,408.08, and recommended judgment against the defendant for that amount. Judgment was rendered in accordance with his recommendation, and from that judgment the defendant appeals.
The defendant in his brief argues that it was error to refer the cause over his objection. But section 5019, Rev. Laws 1910, provides that:
"When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in either of the following cases: Where the trial of an issue of fact shall require the examination of mutual accounts, or when the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove the account; in which case the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein; or where the taking of an account shall be necessary for the information of the court before judgment," etc.
The nature of this action clearly authorized the court to refer the matter of its own motion, and the objection of the defendant was of no avail.
The defendant also complains because the report of the referee was filed out of time, and insists that, by reason of the fact that it was filed out of time, it is a nullity, and cites in support of this contention numerous cases in which it has been held that a case-made is a nullity if not made and served within the time allowed by the order fixing the time for making and serving a case-made, and also other cases that hold that an order extending the time for making and serving a case-made, which is made after the time fixed in the original order has elapsed, is void. But *Page 691 these cases are not in point. The reason for the above rule is that if the time for making and serving a case-made is allowed to elapse, the judgment thereby becomes final; and the trial court thus loses jurisdiction of the cause. But when the court appoints a referee it does not by that act lose jurisdiction of the cause; the referee's report is only advisory. The court can either adopt or reject it; and, if the referee should never report, the court would still retain jurisdiction of the cause, and could appoint another referee, try the cause to a jury, or hear it himself. And the failure of a referee to report could have only the effect upon the case that the failure of a jury to agree would have, which at most would be only a mistrial. The defendant had a right, however, to object to the referee's report being made out of time, and if he had made timely objection, and the report had been filed and accepted over his objection, that would have presented an entirely different question. But when he stipulated that the report might be filed out of time, he waived his objections to that fact, and cannot now be heard to compain because the court permitted the very thing to be done which he had consented and agreed should be done, simply because the results were not what he had anticipated they would be. A party will not be permitted to experiment with the court by consenting to irregularities, and if he gets what he wants, accept it, but if he does not, then object to the very thing that he consented might be done, as illegal and not binding. There are many irregularities which a litigant can waive, and the irregularity here complained of is one of that class. Herring Young v. West et al.,25 Okla. 788, 108 P. 372; Bradford et al. v. Cline et al.,12 Okla. 339, 72 P. 369. *Page 692
The defendant further complains that the findings of the referee are wholly unsupported by the evidence. We think that is not the case. The evidence is very conflicting, and somewhat confusing, but there is evidence to support the finding of the referee. And it is settled in this state that the findings of a referee are entitled to the same weight as the special findings of a jury; and the legal presumption, where the evidence is conflicting, is that the finding of facts of the referee is correct, "and his report will not be set aside, unless it appears with reasonable clearness that he has fallen into a mistake of fact." Eberle et al. v. Drennan et al.,40 Okla. 59, 136 P. 162, 51 L. R. A. (N. S.) 58; Paulter v.Manuel et al., 25 Okla. 59, 108 P. 749; Blakemore v. Johnson,24 Okla. 544, 103 P. 554. This court does not, and cannot, in actions at law where there is conflicting evidence, pass upon the facts. The parties who see the witnesses upon the stand, observe their department, their candor, or lack of candor, their tone and manner, are the only ones who are in a position to correctly weigh their conflicting statements.
We have examined the other errors assigned, and deem them without merit.
We therefore recommend that the judgment be affirmed.
By the Court: It is so ordered.
ON PETITION FOR REHEARING.