Murphy v. Sheftel

THE COURT.

Claiming that the findings in the above-entitled cause are ambiguous as to certain matters of fact which are controlling in the determination of the merits of the appeal, appellants seek, by way of petition to take additional evidence (Code Civ. Proc., see. 956a, and Rule XXXVIII of the Supreme and District Courts of Appeal) and a motion for an order in diminution of the record, to have incorporated in the record on appeal, as extrinsic aids in the construction of said findings, the drafts of the proposed findings and proposed amendments and additions thereto, prepared by the respective parties prior to the signing of the findings, and used in the settlement thereof.

We are of the opinion that the documents referred to cannot be utilized for such purpose. They form no part of the judgment-roll (Code Civ. Proc., sec. 670), nor were they of any legal significance whatever after the findings were settled, signed and filed.

(Weinstock-Nichols Co.

v.

Courtney,

26 Cal. App. 445 [147 Pac. 218].) As pointed

[469]

out in the case last cited, the amendment to section 634 of the Code of Civil Procedure, from which the trial court derives its authority to direct the preparation of findings, was intended merely as an aid to the court in the settlement of the findings, by allowing time within which suggestions may be made by the respective parties; and that consequently the trial court is not bound to accept the proposed findings, nor to adopt any of the suggestions made, but may discard the whole and proceed to make up its own findings, as theretofore permitted. Therefore, as indicated, after the findings herein were settled, signed and filed, the documents referred to possessed no value whatever, either evidentiary or otherwise; and that being so, they cannot be considered for any purpose in the determination of the appeal.

Moreover, the findings of fact and conclusions of law constitute the decision of the trial court, which is the final, deliberate expression of the court

(De Cou