John A. Robbling's Sons Co. v. Gray

LORIGAN, J.

This is an appeal from a judgment in favor of plaintiff, and the point relied on for a reversal is to be determined from an examination of the judgment-roll, solely, as it is unaccompanied by any bill of exceptions or statement on motion for a new trial. The complaint alleged three separate causes of action, the first for a balance of $808.50 for wire lathing; the second on an assigned claim from one S. Y. Mooney for labor performed, amounting to $341.20, “in fitting and putting up wire lathing in the Claus Spreckels Building”; and, third, for labor furnished by plaintiff in the same building, amounting to $341.20, all alleged to have been done and furnished at the request of defendants.

The answer admitted an indebtedness on the first and third counts, but in amounts less than sued on; offered to allow judgment with costs in favor of plaintiff therefor, and specifically denied all the allegations of the second count on the assigned claim of Mooney.

The court made and filed its findings upon the first and third causes of action for the full amounts claimed by plaintiff, but made no finding at all as to the second cause of action, and it is upon this failure to so find that defendants claim error and seek a reversal of the judgment.

[609]

Their contention is, that the allegations in the complaint on "the second count, and which are denied in' the answer, raise material issues upon which it was the duty of the court to ■find. Whatever merit there might be in this claim of appellants, if the appeal from the judgment was under review in -connection with a statement or bill of exceptions containing the evidence submitted on the trial, it is clear that they have ■no right to raise it on appeal from the judgment alone, where it appears that the findings which the court actually did make' fully support that judgment.

The law in that regard is thus stated: “A failure to find upon an issue, the finding upon which might have the effect •of invalidating a judgment fully supported by the findings .made, is not ground for reversal, unless it be shown by a statement, or bill of exceptions, that evidence was submitted in relation to the issue, sufficient to authorize such a finding a& would -have the effect to invalidate the judgment.”