Head v. Barney — 1 Cal. Unrep. 78

Majority

p. 78

JAMES R. HEAD, Appellant, v. F. E. BARNEY, Respondent.

No. 2450;

November 25, 1859.

Headnote

Appeal — Report of Referee. — In the Absence of a Statement of Facts, a judgment on a referee’s report which contains a finding in the alternative, leaving the court to determine the amount of the judgment, must be sustained.

APPEAL from Fifth Judicial District, Amador County.

H. Cook for appellant; Barney & Cope for respondent.

— There is no statement of facts in this case. The referee was directed to report a judgment as to the amount in Receiver Barney’s hands. He reported judgment for the sum of three hundred dollars and upward and then reported a finding in the alternative as to another sum; leaving the court to determine whether judgment should be entered for this sum. Neither in the report nor elsewhere do we see enough to enable us to judge whether the court erred in refusing to give judgment for this latter sum.

We cannot, in tbe absence of a statement, determine this matter.

The costs, if not in the discretion of the court on this issue with the receiver, seem to be disposed of by a stipulation in the record providing that each party should pay his own costs. Nor is it shown the costs are sufficient in amount to give this court jurisdiction.

The judgment is affirmed.

I concur: Field, C. J.