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CHAPTER VI.

OF REFERENCES AND TRIALS BY
REFEREES.

5638. Reference ordered upon agreement of parties, in what cases. $639. Reference ordered on motion, in what cases.

$640. Number of referees, qualifications, etc.

$641. Either party may object. Grounds of objection.

5642. Objections, how disposed of.

$643. Referees to report within ten days. Effect of. How excepted

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§ 638. A reference may be ordered upon the agreement of the parties filed with the clerk or entered in the minutes :

1. To try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a finding and judgment thereon;

2. To ascertain a fact necessary to enable the court to determine an action or proceeding.

Reference in general-court commissioners, before, sec. 259, subd. 2: fees for, sec. 1028: private trial, sec. 125: compulsory, see next section: special, see subd. 2, infra: general, see subd. 1, infra: constitutionality, as to waiver of jury trial, sec. 63in. Referees-number, etc. sec. 640: objections to, secs. 641, 642: trial by, sec. 638n: report of, secs. 643-45. Consent, reference by-consent essential, 2 Cal. 92, 261; 24 Cal. 424; 25 Cal. 549: improper, 1 Cal. 336: constitutionality, sec. 631n; 2 Cal. 92: discontinuance, 1 Cal. 45; 4 Cal. 1: order for, 2 Cal. 355; 4 Cal. 1; 9 Cal. 353. SUBDIVISION 1. To report a judgment, etc.-9 Cal. 213; 20 Cal. 92. Trial by referee-sec. 1053; 2 Cal. 195; 3 Cal. 406; 5 Cal. 430; 7 Cal. 50; 10 Cal. 545; 20 Cal. 92; and see CONDUCT OF TRIAL, sec. 607n. Findings-sec. 633n.

Judgment-generally, secs. 577n, 664n.

SUBDIVISION 2. To take testimony, etc.-see sec. 259, subd. 2; 9 Cal. 213; 41 Cal. 394. Report-sec. 643n.

§ 639. When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:

1. When the trial of an issue of fact requires the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole

issue, or report upon any specific question of fact involved therein;

2. When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect;

3. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action;

4. When it is necessary for the information of the court in a special proceeding.

Reference generally-sec. 638n.

Compulsory reference-unauthorized, 1 Cal. 336: order for, 2 Cal. 245; 9 Cal. 353: and as to power to make, under Constitution, see sec. 631n. SUBDIVISIONS 1 and 2. Account-19 Cal. 140; 28 Cal. 302; 32 Cal. 397; 38 Cal. 385: whole issue, 24 Cal. 424.

SUBDIVISION 3. Collateral question-see 41 Cal. 394.

SUBDIVISION 4. Special proceeding, for-generally, see secs. 1063,

1822.

§ 640. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties. If the parties do not agree, the court or judge must appoint one or more referees, not exceeding three, who reside in the county in which the action or proceeding is triable, and against whom there is no legal objection, or the reference may be made to a court commissioner of the county where the cause is pending.

Reference ordered-see secs. 638, 639, and notes.

Three referees-two may act, sec. 1053.

Court commissioner-sec. 259, subd. 2.

§ 641. Either party may object to the appointment of any person as referee, on one or more of the following grounds:

1. A want of any of the qualifications prescribed by statute to render a person competent as a juror;

2. Consanguinity or affinity, within the third degree, to either party;

3. Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent to either party; or being a member of the family of either party; or a partner in business with either party; or being security on any bond or obligation for either party;

4. Having served as a juror or been a witness on any trial between the same parties, for the same cause of ac

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5. Interest on the part of such person in the event of the action, or in the main question involved in the action; 6. Having formed or expressed an unqualified opinion or belief as to the merits of the action;

7. The existence of a state of mind in such person evincing enmity against or bias to either party.

Objections to referee-compare sec. 602.

§ 642. The objections taken to the appointment of any person as referee must be heard and disposed of by the court. Affidavits may be read and witnesses examined as to such objections.

Objections-see sec. 641 and note.

§ 643. The referees or commissioner must report their findings in writing to the court, within twenty days after the testimony is closed, and the facts found and conclusions of law must be separately stated therein.

Referees-see secs. 640-642. Reference-secs. 638, 639. Commissioner-sec. 259, subd. 2. Report-1 Cal. 45, 362; 2 Cal. 322; 3 Cal. 406, 408, 431; 5 Cal. 228; 9 Cal. 213; 23 Cal. 451; 30 Cal. 280: account, as to, 32 Cal. 397; 47 Cal. 378. Findings-sec. 633n. Twenty days-merely directory, 22 Cal. 471, and compare sec. 6327.

§ 644. The finding of the referee or commissioner upon the whole issue must stand as the finding of the court, and upon filing of the finding with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court.

Finding of referee-effect of, see REPORT, sec. 643n; whole issue upon, 24 Cal. 424. Judgment entered thereon-3 Cal. 406; 31 Cal. 333. § 645. The finding of the referee or commissioner may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the finding reported has the effect of a special verdict.

Referee's findings excepted to and reviewed-2 Cal. 72, 122; 4 Cal. 122; 5 Cal. 90, 430, 453; 7 Cal. 50; 9 Cal. 213, 353; 22 Cal. 471; 47 Cal. 378; 49 Cal. 293: exceptions generally, secs. 646 et seq.: new trials, sec. 656 et seq.: court commissioner's report, time and mode of excepting to, sec. 259, subd. 2; 41 Cal. 393. Reporting the facts-see REPORT, Sec. 643n.

CHAPTER VII.

PROVISIONS RELATING TO TRIALS IN GENERAL.

ART. I. EXCEPTIONS.
II. NEW TRIALS.

ARTICLE I.

EXCEPTIONS.

§ 646. Exceptions may be taken. Time when taken, etc.

647. What deemed excepted to.

648. Exception, form of.

649. Exceptions signed by judge and filed with clerk.

650. Exceptions not presented at time of ruling. Notice to adverse party, how settled upon, etc.

§ 651. Exceptions after judgment, etc.

§ 652. When exception is refused, application to Supreme Court to prove the same, etc.

§ 653. Proceedings when judge ceases to hold office.

§ 646. An exception is an objection upon a matter of law to a decision made, either before or after judgment, by a court, tribunal, judge, or other judicial officer, in an action or proceeding. The exception must be taken at the time the decision is made, except as provided in sec. 647. [Approved April 3rd, 1876-in effect June 1st, 1876.] Immediate taking-of exception, see TIME OF DECISION, under Exceptions, infra. Matters deemed excepted to-sec. 647.

EXCEPTIONS.

Absence of party-as affecting, sec. 647 and note. Amending-sec. 650. Appellate court-first raising objections in, 5 Cal. 409, 478; 6 Cal. 415; 7 Cal. 584; 9 Cal. 562; 10 Cal. 258; 13 Cal. 521; 16 Cal. 173, 184, 535; 22 Cal. 533; 23 Cal. 58; 25 Cal. 225; 26 Cal. 547; 31 Cal. 225; 34 Cal. 580; 46 Cal. 293, 363; 47 Cal. 9; 49 Cal. 103; 50 Cal. 444; 52 Cal. 225: review in, 47 Cal. 98, 162, 167. Bill of exceptions-secs. 650-653. Certifying-sec. 650. Charge to-essential, 49 Cal. 340; specific, see that head. Continuance, refusal of-reviewing, 47 Cal. 98, 162: deemed excepted to, sec. 647. Decision-to, see TAKEN, to what. Deemed made, whensec. 647. Default, order opening-Review of, 47 Cal. 167. Definition of, sec. 646, supra; 32 Cal. 304; 34 Cal. 682; 38 Cal. 141. Drafting-sec. 650. Evidence, objection to-admitted, subject to exception, 7 Cal. 38. Incompetent, 18 Cal. 315; 48 Cal. 335; 50 Cal. 142. Immaterial, 48 Cal. 335; Estate of Brooks, March 31st, 1880, 5 Pac. C. Law J. 236. Irrelevánt, 6 Cal. 157; 18 Cal. 83; 47 Cal. 588; 50 Cal. 142, 176. Motion to strike out, 43 Cal. 274, 444; 46 Cal. 560; 47 Cal. 294; 50 Cal. 176. Rejection of, 15 Cal. 50.

Weight of, 23 Cal. 259. Filing-see SETTLEMENT OF. Findings, tosee sec. 633n. Immediato taking of-see TIME OF DECISION. Immaterial evidence to-see EVIDENCE. Incompetent evidence, to-see EVIDENCE. Irrelevant evidence, to-see EVIDENCE. Manner of taking-see TAKEN, how. Preparing-see SETTLEMENT OF. Presenting-see SETTLEMENT OF. Reason-of immediate taking, see TIME OF DECISION. Record, appearance in-secs. 649, 650; 5. Cal. 258, 430; 6 Cal. 202; 11 Cal. 142; 48 Cal. 537, 646. Rejection of evidence, tosee EVIDENCE. Repeating-39 Cal. 614. Requisites-of bill of excep tions,sec. 650n. Reviewing-see APPELLATE COURT. Settlement of -secs. 649-653. Signing-see SETTLEMENT OF. Specific, must beadmission or rejection of evidence, to, 7 Cal. 38; 10 Cal. 32, 267; 12 Cal. 243; 13 Cal. 220; 15 Cal. 50; 16 Cal. 224; 18 Cal. 315; 19 Cal. 640; 23 Cal. 50; 24 Cal. 171, 399, 459; 25 Cal. 619; 34 Cal. 554; 46 Cal. 392; 48 Cal. 335, 49.634; 49 Cal. 552; 50 Cal. 142, 176; Rider v. Edgar, Feb. 6th, 1880, 4 Pac. C.L. J. 545: charge, to, 25 Cal. 123; 44 Cal. 246, 414; 47 Cal. 348; 43 Cal. 410; 50 Cal. 129: verdict, to, sec. 648. Stating-see TAKEN, how. Striking out evidence-motion for, see EVIDENCE. Taken-to what, 23 Cal. 259; 38 Cal. 141, and see sec. 647. How, see secs. 648, 1051n, and 28 Cal. 170. When, see TIME OF DECISION. Time of decision-taking at. 1 Cal. 379; 2 Cal. 122; 5 Cal. 339, 467; 7 Cal. 423; 8 Cal. 574; 12 Cal. 483; 15 Cal. 183; 16 Cal. 393; 23 Cal. 66, 354, 418; 24 Cal. 359; 25 Cal. 123, 398; 26 Cal. 263; 29 Cal. 214; 32 Cal. 102; 33 Cal. 542; 35 Cal. 398; 36 Cal. 310; 45 Cal. 193, 337; 47 Cal. 387; 48 Cal. 152, 346, 555, 637; 49 Cal. 105; and see APPELLATE COURT: Reason of rule, 5 Cal. 339, 467; 7 Cal. 423. Unnecessary-38 Cal. 27, and see sec. 647. Waiver-5 Cal. 40; 14 Cal. 544; and as to evidence, see 43 Cal. 274, 444; 46 Cal. 560; 47 Cal. 294; 48 Cal. 153; 50 Cal. 176; 51 Cal. 447: also see APPELLATE COURT, and TIME OF DECISION. Weight of evidence, to-see EVIDENCE.

§ 647. The verdict of the jury, the final decision in an action or proceeding, an interlocutory order or decision, finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance; an order made upon ex parte application, and an order or decision made in the absence of a party, are deemed to have been excepted to. [Approved April 3rd-in effect June 1st, 1876.]

Construction of section-47 Cal. 167. Decisions deemed excepted to-Absence of party, in, Amdt. 1876; formerly otherwise, 35 Cal. 398. Amendment to pleading, ruling on, see sec. 473n. Appealable order, sec. 939, subd. 3, and note. Continuance, refusing: granting, also, before Amdt. 1876: review of, see EXCEPTIONS, Sec. 646n. Demurrer, ruling on, sec. 636, and note. Ex parte order, secs. 166, 259, subd. 1. Final decision, defined, 1 Cal. 134; sec. 648n; and generally, see JUDGMENT, sec. 577 and note, sec. 66in: exception presumed, 34 Cal. 682: appeal from, sec. 939, and note. Interlocutory order or decision, defined, 1 Cal. 24: order, sec. 1003: decision, sec. 648n: review of, on appeal, sec. 939n, and subd. 3n; sec. 956n. Striking out pleading, sec. 453 and notes.

Verdict, secs. 624-628.

$648. No particular form of exception is required, but when the exception is to the verdict or decision, upon the

CODE CIV. PROC.-20.

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