CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 7. PROCEDURE ON ORDERS OF REFERENCE.
§56-7-1. To what commissioner or person accounts to be referred;
territorial jurisdiction; recommittal.
Accounts to be taken in any case shall be referred to a
commissioner appointed under the provisions of sections one and
two, article five, chapter fifty-one of this code, to be named in
the decree or order unless the parties interested agree, or the
court shall deem it proper, that they be referred to some other
person especially appointed a commissioner. Every commissioner
shall examine and report upon such accounts and matters as may be
referred to him by the court and such report may be recommitted to
such commissioner, or to some other commissioner, for other and
The court in any decree or order of reference may authorize
and empower the commissioner, to whom such cause or action is
referred, to take proof and hear testimony touching the matters
referred to him in any county within this state; and, for such
purpose when so authorized, the jurisdiction and authority of such
commissioner shall extend throughout the state.
Whenever the commissioner to whom any such cause or action was
referred has made up and filed his report, and there appears
therefrom or from the evidence filed therewith, or from the
pleadings and evidence of the whole case, sufficient facts upon
which the court can decree or enter judgment, the same shall not be
recommitted for further report, but a decree or judgment shall be
entered therein, according to the law and the very right of the
case as disclosed from the whole record.
§56-7-2. Order of reference before case on docket.
The judge of any court having jurisdiction to try or hear
chancery causes may, in vacation or in term time, though the cause
be not upon the court docket, make an order in any cause pending in
his court at any time after process has been duly served on the
defendants or such of them as may appear to be interested in the
subject matter upon which the commissioner is to report, or at any
time after such defendants have entered their appearance in such
cause, referring the same to a commissioner for the purpose of
stating any proper account or reporting upon any matter as to which
it is proper there should be a commissioner's report in such cause.
But no such order of reference shall be made in any cause until
reasonable notice in writing has been served upon the opposite
party, or his attorney, of the time and place of making application
§56-7-3. Notice by commissioner.
The court ordering an account to be taken may direct that the
time and place of taking the same be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for such
publication shall be the county. The newspaper shall be designated
by the party at whose instance such publication is made or his
attorney, and if no newspaper be so designated, then the court
shall designate the newspaper. Such publication shall be
equivalent to personal service on the parties or any of them. In
any case where all persons whose interest may be affected by the
proceedings before a commissioner are known, it shall be sufficient
that, in lieu of such publication of the notice as aforesaid, such
persons, or their counsel (or one of their counsel, if there be
more than one), be served with such notice in the manner provided
by section one, article two of this chapter.
§56-7-4. Instruction of commissioner by judge.
A commissioner who doubts as to any point which arises before
him, in taking an account to be returned to any court, may, in
writing, submit the point to such court, or the judge thereof in
vacation, who may instruct him thereon.
§56-7-5. When account to be taken.
Every commissioner to whom a cause is referred shall,
immediately after the adjournment of each term of the court,
proceed to take all accounts referred to him by any order or decree
of the court, and all adjournments and postponements of the taking
of any account shall be for good cause to be shown by the affidavit
of the party making the application, which shall be filed with the
papers in the cause; and if the commissioner unreasonably delays
his report, he shall receive no compensation for the same.
§56-7-6. Proof of debt before commissioner by affidavit; counter
Every creditor in any chancery cause pending in any court
before a commissioner in chancery under a decree of reference in
such cause may establish his debt or demand against the debtor, if
it be for the recovery of money due on contract, by filing before
the commissioner with such debt or demand, completely itemized
where it is upon an account, the affidavit or affidavits of any
person or persons competent and not disqualified by law (which
competency the affidavit or affidavits shall affirmatively show in
every case where the creditor is seeking to prove a debt or demand
against a deceased debtor or his estate) to testify as a witness or
as witnesses before the commissioner about or concerning the debt
or demand in question, such affidavit or affidavits stating every
essential element necessary to constitute proof of such debt or
demand, the same as though affiant or affiants had testified before
the commissioner as a witness or as witnesses in person, unless the
debtor, his personal representative, or any party, or creditor, or
other person interested shall file before the commissioner a
counter affidavit denying the correctness of the debt or demand, as
a whole or in part, or the validity of any lien by which it is
secured, in which case the creditor presenting such debt or demand
shall be required to produce his witness or witnesses before the
commissioner, reasonable notice of which shall be given in writing
to the creditor or his attorney, and the taking of the testimony
relative to such debt or demand, or the validity of such lien, as
the case may be, shall be proceeded with before the commissioner in like manner as if no affidavit or affidavits had been filed. In
every case, however, where such debt or demand is evidenced by a
contract in writing, or by a judgment or decree, or is secured by
a lien, such affidavit or affidavits alone shall not be sufficient
to establish such debt or demand; but such creditor shall also
produce before such commissioner as additional proof the written
evidence of such debt and shall file the same or a copy thereof
certified by the commissioner, or a certified copy of such judgment
or decree, and, if such judgment or decree be recorded in the
judgment lien docket, a certified transcript of such recordation;
and, if the debt or demand be secured by any other lien than that
of a judgment or decree, he shall file the original or a certified
copy of the writing by which such lien is evidenced.
Any transcript of a judgment or decree of a court or justice
of this state, introduced in evidence in any court or before such
commissioner, shall prima facie be presumed unpaid unless such
judgment or decree appear to have been rendered more than ten years
prior to the time of such proof.
§56-7-7. Adjournment of hearing; notice of completion of report;
A commissioner in chancery may adjourn his proceedings from
time to time after the day to which notice was given, without any
new notice, until his report is completed; and when it is
completed, he shall give notice of the fact to all attorneys who
appear of record in the cause; and thereafter, unless otherwise
ordered by the court or agreed by the parties, he shall retain the
report and the evidence ten days for the examination of parties
interested. Such notice may be given either verbally or in
writing, and may be given by depositing the same in due course of
mail, properly addressed; and the commissioner shall certify in his
report the time and manner of giving such notice. Any party may
inspect the report and evidence and file exceptions thereto before
such commissioner, or at the term of the court to which it is
returned, or, by leave of the court, after such term. In an
exception it shall be sufficient to state the item or part of the
report to which objection is made, but the court may, if good cause
therefor appear, require the exception to be made more specific, or
the grounds therefor to be stated therein, and may overrule such
exception if the requirement be not complied with.
§56-7-8. Contents of commissioner's report.
The commissioner, or any other person executing an order of
reference, in all cases, shall return with his report all the
evidence taken upon the execution of the reference, and the
exceptions, if any, taken to his report, and shall submit such
remarks upon exceptions as he may deem pertinent; and he shall also
return with his report the decrees, orders and notices under which
he acted. He shall not copy in his account or report any papers;
and, if there has been a previous account or report, he shall not
copy it into his report except so far as may be necessary to make
such report a complete account and report in accordance with the
decree of reference entered in the cause. Everything improperly
copied into a commissioner's account shall be expunged at his cost
on the application of either party; and if on account of his
negligence or misconduct a report be recommitted, he shall bear the
cost occasioned thereby.
§56-7-9. When cause may be heard on report.
A cause may be heard upon a commissioner's report at any time
after it is returned, and the court may, for good cause shown by
any party interested, hear a cause on a commissioner's report
returned after the commencement of the term of court at which such
hearing is desired to be had, but the court in this latter case may
require the party desiring the hearing to give reasonable notice to
the opposite party or to his attorney.
§56-7-10. Taking accounts in actions at law.
At law, in any case in which it may be deemed necessary, the
court may direct any such commissioner or other competent person,
either before or at the time of trial, to take and state an account
between the parties, which account, when thus stated, shall be
deemed prima facie correct, and may be given in evidence to the
court or jury trying the case; and the commissioner or other person
shall be allowed for such services the same fees that would be
allowed a commissioner for similar services in the execution of an
order of reference in chancery, to be taxed in the bills of costs.