EX PARTE PETERSON, 253 U. S. 300 (1920)

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U.S. Supreme Court

Ex Parte Peterson, 253 U.S. 300 (1920)

Ex Parte Peterson

No. 28, Original

Argued March 15, 1920

Decided June 1, 1920

253 U.S. 300


The question whether an order of the district court appointing an auditor in a law case will operate to deprive a party of the right of trial by jury may be determined by this Court on application for a mandamus and prohibition. P. 253 U. S. 305.

In an action at law for goods sold and delivered, involving a counterclaim and many items of cross-account between the parties, it is within the power of the district court, when necessary to a proper consideration of the case by court and jury, to appoint, without consent of parties, an auditor to examine books and papers, make computations, and hear testimony, and whose report shall separate the disputed from the undisputed items, express an opinion on those in dispute, and, while leaving the parties as free to call, examine, and cross-examine witnesses as if it had not been made, shall function as prima facie evidence of the facts found and conclusions reached, unless rejected by the court. P. 253 U. S. 306.

While, prior to the adoption of the Constitution, auditors, so empowered, were not appointed either in England or in any of the Colonies in connection with trial by jury, their employment does not violate the Seventh Amendment, since it works no obstruction of the right of trial by jury, and the Amendment does not require that old forms of practice and procedure be retained. P. 253 U. S. 307.

An order of court, like a statute, is not unconstitutional because it endows an official act or finding with a presumption of regularity or of verity. P. 253 U. S. 311.

The auditor is an officer of the court which appoints him; the proceedings before him are subject to its supervision, and the report may be used only if, and so far as, acceptable to the court. P. 253 U. S. 312.

In the absence of any controlling act of Congress, the power to make

Page 253 U. S. 301

a compulsory reference to simplify and clarify the issues and make tentative findings is possessed by the district court inherently at law as in equity. P. 253 U. S. 312.

In the absence of any state or federal statute or rule of court excluding them, the fee of an auditor in a case at law and the expense of his stenographer are taxable as costs. P. 253 U. S. 314.

But such costs cannot be taxed in whole or in part against the prevailing party, the rule of the federal courts at law being that that party is entitled to the entire costs in the trial court, and that the court is without power to apportion them. P. 253 U. S. 317.

Error in apportioning costs held not to require remedy by mandamus or prohibition, a suitable remedy being available by application to the district court or, after final judgment, by writ of error from the court of appeals. P. 253 U. S. 319.

Rule discharged; petition denied.

The case is stated in the opinion.

Page 253 U. S. 303

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