' Culver brought his action against Mrs. Hood on a promissory note for $3,717.50. The defendant filed several pleas, among which was a plea that the note had been procured from her by fraudulent representations of the plaintiff, in whom she had at that time the utmost confidence, he- being her brother-in-law. There was also a plea of set-off. It appearing that the note was given in settlement of long standing and complicated matters of account, the matters in dispute were referred to an auditor, under the act of December 16, 1885; and the auditor, after hearing the evidence, reported that at the time the note was given the defendant owed the plaintiff only $3,586.36, with interest from the date of the note at eight per cent. To this report the plaintiff filed, three exceptions: (1) that the auditor should have found the full amount of the note instead of making the deduction; (2) that “the note sued on, as shown by the evidence, was a settlement, not of a *557general balance on the aconnt for work of plaintiff in building the stores and doing other things for defendant, but was given to cover amounts advanced by plaintiff to defendant for certain items of the work mentioned”; and (3) that the plaintiff was entitled to the attorney’s fees stipulated in the note, to wit ten per cent, on the principal and interest, and the report does not allow such fees. The defendant filed several exceptions of fact, which will be seen by reference to the report which precedes this opinion. The jury sustained all of the defendant’s exceptions except the first and the seventh, the effect of their finding being that the defendant was not indebted to the plaintiff. The plaintiff made a motion for a new trial, which was overruled, and he excepted.
1. The first ground of the motion for a new trial was, that the court erred in allowing the defendant the opening and conclusion of the argument before the jury, over the plaintiff’s objection. Under the facts of the case, we do not think this was an abuse of discretion. The exceptions of the plaintiff to the auditor’s report were of minor importance, while the exceptions of the defendant went to the whole merits of the case. The auditor .had made a finding which, if sustained, would fix upon her a liability to the plaintiff for a large amount; and the burden was upon her to overcome the prima facie case thus made by the finding of the auditor. If she had made no exceptions, judgment would as a matter of course have been rendered against her for the amount found by the auditor. Under this state of facts, it seems to us that she ought to have had the opening and conclusion. At any rate this, under the act of 1885, was a matter of discretion with the trial judge; and the judge, in exercising that discretion, did what the law now requires shall be done in such cases. (See act of Dec. 18, 1894, which provides that “in all cases where both parties file exceptions of fact, the party against whom judgment would be rendered if the report were approved, shall be entitled to open and conclude the argument.”)
*5582. Another ground of the motion for a new trial is, that the court erred in charging, with reference to the second exception of the plaintiff to the auditor’s report, that “the undisputed evidence is that this note was given in final settlement of the mutual accounts of the parties, and I instruct you to disregard this exception.” The full charge of the court was not brought up in the record, and we therefore cannot see in what connection this was said; but in view of the testimony of the plaintiff himself, we do not see what right he has to complain of this instruction. He testified: “The account [in settlement of which the note was given] covered, all expenses I had expended for her [the defendant]. I expended money for [her] husband’s death and burial, and completing the building; also running the house; I bought supplies for the house; we run a little farm then- — the expenses for that; truck farms at different lots; also some repairs at different places,” etc. At the settlement he had “all the bills for such things as he had paid for and charged up to her.” It will be seen, therefore, that the plaintiff’s second exception is contradicted by his own testimony.
3. Under the act of 1885, under which the case was submitted to the auditor, it was his duty to “report the evidence heard by him, the facts found by him, and his rulings on all questions of law, and a general summary of his findings.” Under that act each party had the right to except; and it was the duty of the judge to examine the report, and if it did not appear that error had been committed, to approve the report and dismiss the exceptions; but if he should find that error had been committed, it was his duty to approve the exceptions and cause the issue thus made to be submitted to a jury; and it was provided that on the trial before the jury “only so much evidence reported by the master or auditor as is pertinent to the issue then on trial shall be read to the jury, with such newly discovered evidence as would authorize the grant of a new trial taken in *559connection with the evidence already adduced, wbicb newly discovered evidence shall be made to appear to b,e such by affidavits supporting tbe same satisfactory to tbe presiding judge, and wbicb newly discovered evidence may be presented to tbe jury either orally or by deposition.” (Acts 1884-5, p. 98.) In this case the auditor reported tbe evidence, and tbe evidence so reported was all that appears to have been submitted to tbe jury upon wbicb to try tbe issues of fact raised by tbe exceptions to tbe report, wbicb exceptions bad been approved by tbe judge and submitted to tbe jury. In tbe motion for a new trial tbe question is raised whether tbe jury bad a right, under tbe same evidence, to find differently from tbe, auditor. It will be seen that under tbe act above quoted from, when tbe judge approved tbe exceptions and submitted them to tbe jury, no other evidence was- to be read before them than that reported by tbe auditor, unless it was newly discovered evidence. In this case there was no newly discovered evidence. If tbe jury could not disagree witb tbe auditor and make a different finding upon tbe facts, what would be tbe use of submitting tbe same facts to them? It was certainly not contemplated by tbe act that they should be mere figureheads, to register tbe findings of tbe auditor. In our opinion tbe act contemplated that a jury might reach a different conclusion from tbe auditor upon tbe same evidence, and should be authorized- to find accordingly. If this, were not so, tbe trial of tbe issues made by tbe exceptions of fact would be a mere farce, and it would be a waste of the time of tbe court and country to submit tbe case to tbe jury.
4. There was evidence wbicb would authorize tbe jury to find as they did, and tbe trial judge being satisfied witb their verdict, this court will not interfere witb it.
Judgment affirmed.