Dunaway v. Anderson

BURNETT, J.

Defendants, August Anderson and Alfred J. Anderson, in addition to their answer to the complaint, filed a cross-complaint and were awarded judgment thereon against plaintiff and the Madeline Land and Irrigation Company (a corporation), the latter having been made a defendant in the cross-complaint, for the sum of $1,242. The appeal is by plaintiff from the order denying his motion for a new trial and he states, in his opening brief, that “the propositions we submit herein are (1) The insufficiency of the evidence to support the judgment and findings thereon against T. F. Dunaway, plaintiff and appellant herein, made a defendant with the Madeline Land and Irrigation Company, by the defendants and respondents herein, in the third cause of action by way of cross-complaint, and (2) That said findings therein are against law.” The two propositions thus stated, however, simply amount to the contention that, as a matter of law, the evidence is insufficient to support the following findings of the court: “That between the 10th day of August, 1909, and the 15th day of November, 1909, the defendants August Anderson and Alfred J. Anderson, at the county of Lassen, state of California, performed labor and services in the erection and construction of a certain dam for the storage of water on the S. E. 14 S. E. 14 section 22, Tp. 36 N., B. 16 E., M. D. M. and in the construction of three miles of canal and ditch, at the special instance and request of the said plaintiff T. F. Dunaway, and the Madeline Land and Irrigation Company.”

It is not disputed that the services were performed by said defendants and that they were worth the amount found by the court, but appellant insists that there is no warrant for the conclusion that

he

employed defendants, the contention being that their contract was solely with the said Madeline

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Land and Irrigation Company and that his connection with the matter was simply as an officer of said corporation.

Appellant does not seem to appreciate fully the difference between the situation of an appellate court and that of the trial court in passing upon the merits of a motion for a new trial. He says: “The supreme court properly has the right under the constitution of the state of California to review questions of fact and thereunder examine evidence for the purpose of determining whether the court below erred in its finding. ’ ’ He cites as authority Hayne on New Trial and Appeal, page 1631 (revised ed.) wherein it is stated: “The implication of the constitution, therefore, is that in civil eases the supreme court shall review questions of fact as well as questions of law. But however this may be, the constitution certainly contains no