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7 Wash. 304

Park v. Mighell

Washington Supreme Court

Decided November 22, 1893

Washington Supreme Court · decided 1893-11-22

<p>TRIAL BY REFEREE — ABSENCE OF FINDINGS — RE-TRIAL AFTER REVERSAL — WAIVER OF JURY.</p> <p>Where a ease has been reversed on appeal, on the ground that it was tried before a referee and no findings of fact had been made by him, and has been remanded upon an order that the cause be heard by the same referee upon the testimony already taken, he is not disqualified by reason of his proceedings in the former trial from making his findings of fact upon the testimony previously taken.</p> <p>Where a jury has been waived in an action, and trial had before a referee, the waiver holds good for a re-trial of the cause after a reversal on appeal.</p>

Key passage — most relied on by later courts

“order contemplated that it should go back to the same referee, and be heard upon the testimony already taken”

quoted by 1 later decision, including 39 Wash. App. 751 - Spring v. Department of Labor & Industries

Relies on Park v. Mighell

Good law ✅— No negative treatment on recordhow we know

Decided 1893-11-22

How this case has been cited

Cited by 18 later decisions — most recently September 2012

2 federal appellate · 16 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1The opinion of the court was delivered by

Scott, J.

¶2This case was here once before (3 Wash. 737; 29 Pac. Rep. 536), when it appeared that the facts *305had not been found by the referee. A judgment had been rendered for the sum of §300 in favor of the plaintiff, but there was no finding upon many of the issues made by the pleadings, and apparently, so far as the record disclosed, there never had been a complete trial. Upon that ground the case was reversed and sent back for a re-trial, with directions to make findings upon these matters. The order contemplated that it should go back to the same referee, and be heard upon the testimony already taken. When the case came up again before the referee the defendants objected to his proceeding therewith on the ground that he was disqualified by reason of the former trial, and because they desired a trial by jury. These objections were overruled. The defendants had originally waived a trial by jury, and this waiver held good, and, under the peculiar circumstances of the case, the referee was not disqualified by reason of his prior proceedings in the premises. No other testimony was offered by either side, and the referee proceeded to make his findings of fact upon the testimony previously taken, whereby he found the defendants were indebted to the plaintiff in the sum of §271, and judgment was rendered for this amount.

¶3It is contended that there was error in several orders made by the court, relating to security for costs and to the granting of continuances of the trial. As to these, it is sufficient to say that no good ground appears for a reversal of the‘judgment in consequence thereof. Many of the other errors alleged challenge the correctness of the findings of fact. These findings, however, appear to be complete upon the issues, and there is testimony to support them. The findings support the judgment, and no sufficient ground is shown for disturbing the same.

¶4There are many other matters discussed which have no foundation in the record that we are able to discover, *306and fox that reason we deem it unnecessaxy to set them forth.

¶5Judgment affirmed.

¶6Dunbar, C. J., and Hoyt, Stiles and Anders, JJ., concur.

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