Delany v. Toomey

WOOD (Fred B.), J.

In this proceeding for a writ of mandate requiring respondent Thomas A. Toomey, as registrar of voters, to certify petitioner as the newly elected Chairman of the Democratic County Central Committee of San Francisco, judgment was entered in the form of a minute order reading, “Petition for writ of mandate denied. Demurrer and motion to strike denied. Ord: restraining order dissolved.”

Petitioner has appealed from those portions of the judgment which denied the petition and dissolved the restraining order. The restraining order was incidental to and a part of an alternative writ which had been issued, containing a recital that such a writ should issue “together with a temporary restraining order pending the hearing on said writ.”

The appeal must be dismissed because taken from an order entered in the minutes upon the trial of issues of fact (not an order of nonsuit) made without findings of fact or waiver of findings.

Findings of fact are required, unless waived, upon the trial of a question of fact in a civil action. (Code Civ. Proe., §§ 632-634.) This requirement is made applicable to a mandamus proceeding by section 1109 of the Code of Civil Proce

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dure, which declares that “Except as otherwise provided in this title [which includes §§ 1084-1097, relating to the writ of mandate], the provisions of part two of this code [in which part §§632-634 occur] are applicable to and constitute the rules of practice in the proceedings mentioned in this title.” We find nothing in the title mentioned (§§ 1067-1110b of the code) which dispenses with the requirement for findings of fact in a mandamus proceeding. Without discussion of section 1109, the court in

Davis

v.

State Board of Optometry,

35 Cal.App.2d 428 [95 P.2d 959], held that findings of fact are required upon the trial of questions of fact in a mandamus proceeding.

Steen

v.

Board of Civil Service Commrs.,

26 Cal.2d 716 [160 P.2d 816], does not hold differently. Findings of fact were not necessary in that case because there had been no trial of questions of fact. No writ had been issued and no answer or return had been filed. The hearing was held pursuant to section 1107 of the Code of Civil Procedure, “under which a copy of the petition for the writ is served on the respondent before an alternative writ is issued and the respondent may file points and authorities in opposition to it. ’ ’ (P. 727.) Accordingly, a denial of the petition by minute order without findings was sufficient.