McKeever v. Locke-Paddon Co.

KINSELL, J.,

pro tem.

Action was brought for damages alleged to have been sustained by plaintiff in connection with real estate trade through fraudulent representations of the defendant.

The case was tried before a jury upon the express stipulation of counsel that the jury sit in an advisory capacity and that the issues to be determined need not be specialized but that the form of the verdict might be general, that the court should accept such verdict, in the event that it had substantial support, as the basis of the court’s judgment. The verdict was for the plaintiff, and judgment was entered on the verdict.

Defendant appeals, and specifies a number of alleged errors, among which is the specification that notwithstanding the fact that the jury acted solely in an advisory capacity the trial judge failed to file any written decision, findings of fact, conclusions of law, or order adopting the verdict of the jury as required by the code. If this point be well taken all other matters in the voluminous record become immaterial.

[1]

It would seem that the appellant’s contention is correct. The calling of the jury in an advisory capacity made it a trial by the court, and necessitated a written decision by the court (Code Civ. Proc., sec. 632), as well as findings of fact and conclusions of law. (Code Civ. Proc., sec. 633;

Vallejo etc. R. R. Co.

v.

Reed Orchard Co.,

169 Cal. 545, [147 Pac. 238];

Holland

v.

Kelly,

177 Cal. 43, [169 Pac. 1000].)

The case of

Johnson

v.

Mina Rica etc. Co.,

128 Cal. 521, [61 Pac. 76], cited by respondent, is not in point, since in that case it was stipulated “that the jury should

try

the legal issues tendered by the answer, and that these issues should be