Rule 53.Masters.

No reported case has been found dealing with law side statutory procedure for masters. As to masters in equity, prior law designated the register as standing master unless otherwise ordered by the court.

Rule 53 leaves the position of standing master within the flexible control of the court. Designation of the register as standing master under Rule 53(a) would be entirely appropriate.

Rule 53(a) also treats the compensation of the master, a matter not expressly covered under the old Equity Rules 79-88. See Tit. 7, § 269 for former law side provision for fees of the master.

Rule 53(b) details the occasions upon which the appointment of a master will be appropriate. The appointment is discretionary and can come on the court’s own motion or on motion of a party. The Rule clearly categorizes the appointment as an exceptional situation. Because of the increased costs, likelihood of delay, and possible lack of confidence in the outcome, the power to order a reference is to be sparingly exercised. See Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir.1942) for arguments against appointment of a master. See also the limiting decision in LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), reh. denied 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 560 wherein the Court found no exceptional conditions based upon calendar congestion, complexity of issues and prospect of an unduly long trial. See 9 Wright & Miller, Federal Practice and Procedure, Civil § 2205 (1971).

Rule 53(c) regulates the powers of the master. The court may specify or limit the powers or invite findings on particular issues, or to report evidence only. Thus, armed with his instructions from the court, the master is then empowered to conduct his duties with authority similar to that available to the court. For example, he may require production of records, rule upon evidence, put witnesses on oath, conduct examination and, when requested, make a record of the evidence.

Rule 53(d) further details the mechanics of the performance of the master’s duties, Subpoena and sanction power is available under Rule 53(d)(2).

Rule 53(e) covers the report of the master. Reference to a master, even with the affirmative consent of the parties is not a waiver of jury trial. Rule 53(e)(3), (4). In a jury case the findings of the master are read to the jury, subject to any objections on points of law, and are sufficient to make out a prima facie case for the party favored by them. However, the parties may present to the jury any other evidence they desire and are free to call witnesses who were heard by the referee. Rule 53(e)(3).

In a non-jury case the parties may object to the findings of the master, and the court, after hearing, may accept or reject the findings of the master, in whole or in part. The court is to accept the findings unless they are “clearly erroneous.” Rule 53(e)(2). This is the same standard which appellate courts are to follow in passing on the findings of a trial court in a non-jury case, Rule 52(a). And it is the standard already employed in Alabama with regard to the report of a master. See Reporter’s Comment to Rule 52.

This rule permits the court to direct that the master make both findings of fact and conclusions of law. Rule 53(e)(1). Conclusions of law, if made, are not binding upon the court. 5A Moore’s Federal Practice, ¶ 53.12(5) (2d ed. 1971). Prior Alabama practice did not permit the master to make conclusions of law.

In Jones v. Moore, 215 Ala. 579, 112 So. 207 (1927), the failure to except to the master’s report was considered an admission of its correctness. Federal construction of Rule 53 in conjunction with Rule 52(b) has reached a different result. Under Federal Rule 52(b), a party is permitted to raise for the first time, on appeal, a question of the sufficiency of evidence to support the findings of the trial court in a non-jury proceeding. In Bingham Pump Co. v. Edwards, 118 F.2d 338 (9th Cir.1941), cert. denied 314 U.S. 656, 62 S.Ct. 107, 86 L.Ed. 525, the appellant failed to except to the master’s report and the trial court thereupon approved the master’s report. Applying Rule 52(b) the Ninth Circuit permitted the objection to the findings of the master to be raised for the first time on appeal. See 5A Moore’s Federal Practice, ¶ 53.11 (2d ed. 1971). The application of Rule 52(b) to non-jury proceedings wherein the trial court has adopted the findings of a master puts too great a burden on the trial court. Consequently, Rule 53(e)(2) is phrased differently from Federal Rule 53(e)(2) in that the Alabama Rule requires that parties “shall” serve any written objections, rather than “may” serve as used in Federal Rule. Consequently, the failure to except to the master’s report at the time it is submitted to the trial court would preclude an objection to the report being made for the first time on appeal, the provisions of Rule 52(b) as to non-jury proceedings wherein no masters report is involved notwithstanding. Nothing in this Rule is to be taken in derogation of Rule 52(b) within the context of a non-jury proceeding wherein no master’s report is involved.

Committee Comments to October 1, 1995, Amendment to Rule 53

Subdivision (e). The amendment is drawn from the present version of F.R.Civ.P. 53(e). It requires the master to serve copies of the report on the parties, thereby removing the responsibility from the clerk, who was required to serve those copies under the former rule.

Committee Comments to January 1, 1996 Amendment to Rule 53

The reference to “Rule 43(c)” in the last sentence of subparagraph (c) was changed to “the Alabama Rules of Evidence” because of the abrogation of Rule 43(c).