(dissenting).
I am unable to agree to the judgment in this case. It appears from the record that the court below refused to hear the testimony óf certain witnesses produced by the complainant on the trial, for the reason that the time fixed by the court for the taking of the evidence in the case in its order of reference had expired. That order of reference, it appears from the record, was based upon a so-called stipulation of the parties, which, in my judgment, cannot be properly regarded as a voluntary one. It appears that the cause only came to issue on the 9th day of February, 1903. It involved controverted questions of fact upon which, as the record shows, a large amount of testimony was taken; the record comprising eight large volumes of printed matter. It seems to me that each party to such a suit is legally entitled to a reasonable time after issue joined within which to prepare for trial. Yet the record contains this bill of exceptions: “On February 14, 1903 [only five days after the case had come to issue], this cause coming on for hearing after application [for] continuance had been overruled, over objections and exceptions of plaintiff the court announced in open court that the case would be referred for the purpose of taking the testimony, and attorneys for plaintiff objected to such reference; whereupon the court stated that, if plaintiff did not agree to such reference, that the case would be set down for immediate trial; and the hearing was then continued till the 16th of February, at 10 o’clock a. m., at which time the attorneys for plaintiff signed an agreement to refer the case, for the reason they were compelled so to do or at once go to trial. The above and *438foregoing bill of exceptions is allowed the 16th day of February, 1903. James Wickersham, District Judge.”
It was upon that so-called stipulation that the order of reference was based, which was held by the court below to preclude the complainant from introducing testimony of witnesses that it produced in court at the time of trial. I am unable to regard the so-called stipulation as a voluntary one, or to give my sanction to such proceedings. I therefore respectfully dissent from the judgment given here.