McKeon v. McDermott

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action upon a promissory note. The defendant by his answer set up several defenses. 1st. That the note was given for an illegal consideration. 2d. That an attachment for $>2,800 was issued in a suit in favor of one Irvine against the plaintiff, under which he, the defendant, had been garnisheed; and also, 3d. Setting up various payments and matters of set-off. The plaintiff demurred to the several defenses in the answer, and the Court sustained the demurrer as to the defenses of illegality of the consideration and the service of garnishment upon the defendant. The issues were tried by the Court without a jury, and a judgment rendered for the plaintiff, from which the defendant appeals.

The sustaining of the demurrer to that part of the answer in which the defendant alleged that he had been garnisheed, is the first error assigned. There was no error in this action of the Court, [669]The proper course in this case was for the defendant to set up these facts in an affidavit, and move the Court for a stay of proceedings in this action, until the proceedings in the action brought by the attaching creditor should be disposed of. He would have been entitled to relief in that mode. (McFadden v. O’Donnell, 18 Cal. 160.)

The case was tried by the Court, a jury being waived, but the Court failed to file any findings, and this is assigned as error. This is well taken. The judgment in this case was rendered January 29th, 1861, prior to the passage of the Act of May 20th, 1861, which provides that “ no judgment shall be reversed for want of a finding, or for a defective finding of facts, unless exceptions be made in the Court below to the finding, or to the want of a finding” (Stat. 1861, 589), and is not, therefore, governed by that Act. " It has been repeatedly held by this Court, in cases adjudicated before the passage of the law of 1861, that a judgment will be reversed for want of a finding in cases tried by the Court without a jury.

The judgment is reversed, and the cause remanded for further proceedings.