#### Fairbank and another vs. Newton.

Trial by Referee. *(1) Taking judgment on referee's "report. (2) Review, by court below, of referee’s findings. (3) When exceptions to referee’s report reviewed here.*

1. The report of a referee for trial, when made, of itself entitles neither party to judgment, hut either or both of the parties may move to set it aside, or to confirm it; and either or both may move for judgment upon it.

2. The party objecting to the referee’s findings of fact must file written exceptions thereto, and thereupon the court, before judgment, should hear the parties, and make an order sustaining or overruling the exceptions, and confirming, setting aside or modifying the report.

3. Appellant filed exceptions to the referee’s report, and respondents moved to confirm the report, and for judgment; and judgment was rendered, which recites the motion to confirm, but not the exceptions, and neither overrules the exceptions nor confirms the report; and the record does not show that the court passed upon the exceptions or the motion to confirm. *Held,*that the exceptions to the report cannot be considered here, but the judgment must be reversed as at least premature.

APPEAL from the Circuit Court for *Dodge*County.

Action for moneys advanced for wheat to be delivered by the defendant. There was a counterclaim by the defendant, and a reply in denial. The cause was sent to a referee for trial. A large amount of evidence was talcen before the referee, which seems to he all preserved in the hill of exceptions, together with the exceptions taken before the referee to his rulings upon the admission of evidence. The referee re*645ported the evidence and exceptions to the court, and also reported his findings of fact and.conclusions of law thereupon. His conclusions were, that plaintiffs were entitled to recover from defendant a certain specified sum, and that defendant was not entitled to recover anything from plaintiffs on his counterclaim. The defendant filed exceptions to the findings of fact and conclusions of law. Plaintiffs moved, oh notice, for judgment upon the report; and the bill of exceptions states that, upon a hearing of .this motion, the court *“*approved the said report and said findings of fact and conclusions of law,” and rendered judgment for the plaintiffs in accordance therewith. Defendant appealed from the judgment.

*H. E. Connit,*for the appellant.

*Eli Hooker,*for the respondents.

Ryan, O. J".

When the report of a referee, to whom a cause has been sent for trial, comes in, the report, of itself, entitles neither party to judgment, but either or both parties may move to set it aside or confirm it. Either or both parties may move for judgment upon it, as upon a special verdict. Rut a party objecting to the referee’s findings of fact, must file his written exceptions to the findings. It is the duty of the circuit court thereupon, before judgment, to hear the parties, and to malie an order sustaining or overruling the exceptions, and confirming, setting aside or modifying the report. *Dinsmore v. Smith,*17 Wis., 20; *Jenkins v. Esterly,*22 Wis., 128; *Gilbank v. Stephenson,*30 Wis., 155; *Riley v. Mitchell,*37 Wis., 612; *Yates v. Shepardson,*39 Wis., 173; *Cairns v. O' Bleness,*40 Wis., 469; *M. I. Works Co. v. Ketchum,*44 Wis., 126; *McDonnell v. Schricker,*id., 327; *Thornton v. Eaton,*45 Wis., 618.

In this case, the appellant filed several exceptions to the report of the referee; and the respondent moved to confirm the report and for judgment. But it does not appear by .the record that the court below passed upon the exceptions, or *646upon the motion to confirm. There is a recital in the judgment of the motion to confirm, hut not of the exceptions. The judgment does not overrule the exceptions or confirm the report. After the recital, it is in form a judgment for the amount reported by the referee, without reference to the report.

As the record stands, this court is powerless to consider the appellant’s exceptions to the report. The judgment appears to have been premature, to say the least. Judgment could not properly be rendered on the report before the exceptions had been overruled and the report confirmed.

*By the Gov/rt.*— The judgment is reversed, and the cause remanded to the court below for further proceedings on the report of the referee.