This section contains the nature of the case and procedural background.

Peterson (P) brought an action against Davison (D) to recover a balance of $21,014.43, alleged to be due for coal sold and delivered. D's answer admitted the items set forth in the schedule filed by P but denied that it presented a full account of the transactions between the parties, and alleged that there were other deliveries of coal and other payments which D had made, and also that he was entitled to additional allowances. D alleged, by counterclaim, that P was indebted to him for failure to perform its contracts for coal in the sum of $9,999.10. Upon motion of D and against the objection of P, Judge Hand appointed an auditor. The auditor was to make a preliminary investigation as to the facts, hear the witnesses, examine the accounts of the parties, and make and file a report in the office of the clerk of this court with a view to simplifying the issues for the jury, but not to finally determine any of the issues in the action, the final determination of all issues of fact to be made by the jury on the trial, and the auditor to have power to compel the attendance of, and administer the oaths to, witnesses, the expense of the auditor, including the expense of the stenographer, to be paid by either or both parties to this action in accordance with the determination of the trial judge. The auditor was ordered to report on certain facts under ten classifications. P filed a writ mandamus asking that the auditor be prohibited from proceeding under the order appointing him. P insists that the district court is without power to make the order appointing the auditor and that proceedings thereunder would violate the Seventh Amendment to the federal Constitution.

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