• “It is contended that all these steps should have been taken within due time after the filing of the report of Hon. Geo. B. Okey' as Master Commissioner and that the failure to do so at that time is fatal to the proceedings in error. This states the whole question,'
The important fact lying at the threshold of ' this question is the agreement of parties to submit the ease to the Master Commissioner and the action of the court, based upon'such agreement. It is not, therefore, a case where the court, at the instance of one party and over the objection of the other, appoints a special master commissioner in an action at law. Where parties to an action are sui juris they may, by mutual agreement, submit the trial of a law case to a master commissioner to hear the testimony and to make his report under the law governing such references. By so' doing, they waive a jury trial and the case becomes, for all practical pnrposes, a non-jury case.. The condition, in the statute, that a non-jury case should not be referred to a master, is also capable of being waived. Where all the parties consent thereto and the reference is actually made by the court, all parties consenting thereto would be estopped to claim that the reference was improperly made.
We, therefore, hold that until the court below spoke — holding that the original reference, by operation of law, was one to a referee — the reference, both as a matter of fact an as a matter of law, was to Geo. B. Okey as a Master Commissioner and his proceedings thereunder, up until the court made the order of re-reference, was governed by the law affecting master commissioners.
The finding of the Court of Common Pleas that the original reference, although specified as one to a master commissioner, was, as a matter of law, a reference to a. referee, did not, in our judgment, operate ex post facto, but spoke only prospectively.
There having been no final judgment of the Court on report of the Special Master1 Commissioner, there was nothing, at that time, calling for a motion for a new trial, a bill of exceptions or a petition in error. The order of reference to Okey as referee became a submission of the entire case; it was a new and enlarged order of reference. Such order of reference to Okey as Referee, the rendition of the report and the judgment by the Referee, superseded the report of the Master Commissioner; and the report and judgment of the Referee, together with the action of the court thereon, became the final and effective judgment in the case, from which all the necessary steps to perfect proceeding in error date.
But, even if we take the horn of the dilemma represented by the order of the Court of Common Pleas holding that the so-called Master Commissioner was in fact a Referee, we are confronted by the following finding and order of the trial court:
“Said Geo. B. Okey has prematurely reported his proceedings under said reference and without completing his duties ’ thereunder in that he did not notify or otherwie advise the parties before filing his said report, * * * nor did he give the parties, before so filing his said report, any opportunity to take, exceptions before him to his findings or rulings by him at the trial.
The duties of a referee are thus defined by Judge Mellvans in the case of Averill Coal & Oil Co. v. Verner, 22 OS. 372.
“An opportunity should certainly be afforded to the parties by the referee, before filing his report, to examine it and to tender, if desired, a. bill of exceptions for his allowance so that such facts as might be necessary to protect them against the consequences of error committed on a trial may be placed on record.”
The trial court, in the instant case, after finding this substantial irregularity of the' so-called Master Commission acting as referee, was justified in re-referring the case to said Okey as referee to complete his proceedings and re-file his report. There was certainly.no abuse of discretion in so doing. Even if we were to assume, therefore, that Geo. B. Okey acted as referee, no valid or final report was made until after the re-reference and the refiling of the report by Geo. B. Okey, as referee.
Entertaining these views, we hold that the motion for a new trial, the exceptions, the bill of exceptions and the petition in error were duly filed and are a proper part of the record to be reviewed.
(Ferneding & Kunkle, JJ., concur.)