# Heckers v. Fowler

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United States Supreme Court
69 U.S. 123
Heckers v. Fowler
JOHN FOWLER brought suit in the Circuit Court for the Southern District of New York, against John and George Hecker, to recover damages for a breach of covenant. The declaration alleged that the plaintiff, who was the patentee of an improvement in making flour, had granted to the Heckers the right to supply a particular district with such flour, &c., paying so much per barrel. Defence, that the patent was worthless, and that the plaintiff had failed to maintain its validity at his own cost, as he had agreed to do. Replication; issue, and joinder. While the case was thus pending, the attorneys of the parties agreed to refer it to a 'referee, to hear and determine the same, and all issues therein, with the same powers as the court, and that an order be entered, making such reference; and that the report of said referee have the same force and effect as a judgment of said court.' One of the judges accordingly 'ordered that the cause be referred to H. Cramm, Esq., to hear and determine all the issues herein, with the fullest powers ordinarily given to referees; and that on filing the report of the said referee with the clerk of the court, judgment be entered in conformity therewith, the same as if the cause had been tried before the court.' The referee heard the case, and without stating what his findings were upon any of the several issues presented in the pleadings, made the finding, simply and generally, that there was due to plaintiff, John Fowler, from the defendants, John and George Hecker, the sum of $9500, besides costs, all which he 'reported' to the court. On this, the attorneys of Fowler drew up the form of a judgment, and without the presence or action of the court, except the order of reference already alluded to, filed it with the clerk, who thereon entered judgment, as a judgment of the court, for the amount reported, with costs. The defendant took this writ of error.
It is necessary here to state that, by the code of New York, a referee is clothed with the attributes of a judge. A trial by him is to be conducted in the same manner as a trial by the court; he may grant adjournments, allow amendments, compel the attendance of witnesses. His decisions may be excepted to and revised, as in cases of appeal from courts of record. It is also enacted, that 'the report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court.'
Mr. Norton, for the plaintiff in error: No objection, we think, can properly be taken to the right of this court to entertain the matters here presented; although it might be suggested that the facts in this case not having been found either by a general or special verdict, nor agreed upon in a case stated, and there being no bill of exceptions, there are no questions open to revision here, and hence that this court will affirm the judgment of the court below, of course. We apprehend it to be clear, however, that while this court will not review the judgment of inferior courts made without the intervention of juries, or on a case stated, it will, at the same time, exercise its superintending care in preventing the judgments of State judicial officers from being interpolated into the records of the courts of the United States, and being enforced by the process of those courts.
Assuming, then, the jurisdiction to exist, we observe:
1. That the declaration, which relies on a contract in restraint of trade, does not set forth a sufficient cause of action. But,
2. The case presents to us a record of mixed proceedings, commenced before a judicial officer of the United States, conducted by a judicial officer unknown to the courts of the United States, whose judgment (or a paper purporting to be a judgment) is filed in the office of the United States Circuit Court, attached to the pleadings by its clerk, and made a part of the record in this case. Will such a proceeding be allowed? State courts are authorized by statutes to have such proceedings; but without statute the proceedings would be very irregular, and there is no statute of the United States which authorizes them in the Federal courts. This court has, indeed, decided, that if the parties agree to submit the trial both of fact and law to the judge, they constitute him an abitrator or referee, whose award must be final and conclusive between them; but no consent can constitute this court appellate arbitrators. But in this and in other cases which might be cited, the judgment was rendered by a judge created by the laws of the United States, whose function it is to pronounce judgments in the courts of the United States. In this record there is no such judgment. Whatever is rendered, is rendered by a person wholly unjudicial, and dehors the tribunal; or coming into it only pro hac vice. Even if it is a judgment in the Circuit Court, it is not a judgment of the court.
3. The referee did not decide the case in conformity with the order of court. He did not 'determine all the issues of the case;' but made a single and general finding that there was due such a sum.
4. But even the referee's judgment was not properly entered. In fact, though he made a report, he gave no judgment. The clerk gave the judgment. It is, therefore, invalid, and cannot be enforced.
Mr. Andrews, contra.
Mr. Justice CLIFFORD delivered the opinion of the court.

## Notes

* ↑ § 272.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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