White v. Rosenstein

STEPHENS, J.

In this suit it was sought to recover from a notary public or the notary’s bondsman certain damages resulting from a transaction regarding real estate and an encumbrance thereon to secure the loan, in which the notary took an acknowledgment without knowing that the acknowledger was the person she claimed to be. The case was tried by the court without a jury and judgment was awarded plaintiffs. A motion was subsequently made by defendants under section 663 of the Code of Civil Procedure “for an order vacating and setting aside said judgment in favor of plaintiffs and against defendants and directing another and different judgment to be entered on the said findings of fact in favor of defendants and against plaintiffs”. Such motion was granted and an order entitled “New "and Different Conclusions of Law” was signed by the court holding that the specific facts set out in the findings of fact show that the proximate cause of the damages suffered by plaintiffs was the plaintiffs’ own contributory negligence. The original judgment was set aside, and from the judgment subsequently entered pursuant to the new conclusions of law plaintiffs appeal upon the judgment-roll.

We have here a situation wherein the trial court has determined after judgment that the specific facts related in its findings show negligence on plaintiffs’ (appellants’) part, notwithstanding the ultimate finding of facts, and original opinion, that they were free from negligence. In other words, the court has sought to cause its conclusions of law to flow from its findings of specific fact instead of from its findings of ultimate fact. Read strictly, section 663 of the Code of Civil Procedure does not permit the court to go this far, as it specifically limits relief under it to cases where the judgment is

inconsistent with

or is

not supported by

the findings. There is plenty of authority to the effect that ultimate findings prevail over specific findings,

[578]

that the finding of the ultimate fact from all of the specific facts established at the trial is the province of the trial court and that the inclusion of probative facts in the findings is improper. However, upon good reasoning not necessary to be repeated here, the rule has been held in