delivered the opinion of the Court, with which Hetdeneeldt, Justice, concurred.
It appears from the record in this case, that on the 31st Dec. 1851, the parties consented in open court to waive a jury trial, and submitted the matters in controversy to the Court; the Court then proceeded with the trial, and adjourned the further hearing until the 2nd of January, 1852. No further proceedings were had until the 19th of January, when, on motion of plaintiff’s attorney, the cause was referred, in order to ascertain “ the damages sustained by the plaintiff;” and on the 18th of April, the Court entered up the judgment appealed from, upon the facts found by the referee. This proceeding of the Court was irregular. The action is for the recovery of a certain lot of land in the City of Sacramento, and for damages incurred by the use and occupation of the defendant, and is strictly a common law proceeding, and not such a case as would authorize a reference by the Court, without consent of both parties. The case having been submitted to the Court, it was the duty of the Court to find upon facts adduced by the parties, and not the facts presented in a referee’s report.
The judgment is reversed, and the cause remanded with costs, to the appellant.