The plaintiff in this case moves to dismiss the appeal filed in this Court, because as he claims, the defendant had no right to appeal except from the decree of the Court below, in receiving and accepting the report of the auditors, whereas the appeal as now filed brings up the whole case, and opens it for further evidence for either party.
The plaintiff grounds himself upon sec. 21 of the "act prescribing the manner of proceedings in Courts," (Dig. of 1844, p. 132,) which enacts that "in all actions relative to partnership, and all other joint accounts, and in all actions involving matters of book account, the Supreme Court and any Court of Common Pleas, are authorized and empowered to appoint an auditor or auditors, *Page 62 who shall have the same power, and be sworn, and proceed in the same manner as auditors in a proper action of account;" and contends that under the provision of the statute upon the appointment of auditors, there can be no trial of the facts in any other mode, nor by any other auditors than those appointed in the court below.
The 15th section of the "act establishing Courts of Common Pleas," (Dig. of 1844, p. 99,) provides that "any party aggrieved by the judgment of the Court of Common Pleas in any county may appeal to the Supreme Court," "where both parties may have the benefit of any new and further evidence."
If this right to the benefit of any new and further evidence is to be denied by the appointment of auditors in the Court below, since the appointment of auditors is in the discretion of the Court, the intent ought to be clear.
The simple power of submitting the facts to another tribunal than the jury, would not, in itself, evince any such intent, but merely, that the fact might there be settled otherwise than by a jury trial.
There is nothing in the section providing for the appointment of auditors which necessarily prevents a further hearing of the fact in the court appealed to, but the same discretion is vested in the court of appeal.
The provision as to what shall be done on the reception of the auditors' report, is, that upon its reception judgment shall be rendered for the amount reported.
The same thing would be done upon a verdict when accepted, and there is nothing to show that this was not to stand upon the same footing.
There is nothing in section 21 limiting the appeal to the action of the court below upon the auditors' report, *Page 63 and we see no reason why full effect should not be given to section 15 of the act.
It was contended that inasmuch as the auditors were to proceed as auditors in a proper action of account, the section 21 should be construed in analogy to the proceedings in an action of account, as to the appeal, as provided by the statute regulating that action.
The statute provides that upon rendering a judgment to account, the party, if he would appeal from that judgment, must do so within two days next after judgment rendered.
Now, in the action of account, the party has his appeal from the judgment to account; but if the plaintiff's position be sound, and the only appeal in case of appointment of auditor is upon the judgment of the court upon the reception of the auditors' report, then he would have less right than the party in an action of account, for he is debarred from any appeal from the appointment of the auditors, though it be made against his will.
Motion refused. *Page 64