Prince v. Lynch

Sawyer, C. J., delivered the opinion of the Court: This cause was tried by the Court, without a jury, on the 24th of October, 1868; and on the 7th of November following, the Court filed its findings in writing, stating the facts found and conclusions of law separately, as required by the Practice Act, and concluding with a direction to enter judgment for the defendant in pursuance of the findings. The plaintiff having given the defendant notice on the 10th of November of the filing of said findings, on the 14th of November the defendant gave plaintiff notice that he excepted to the findings on the ground that they were not in accordance with the evidence introduced, and served therewith other and different findings, which he claimed to be in accordance with the evidence, and a notice that on the 21st of November he would move the Court to substitute the findings so served for those on file. On hearing the motion, the Court made the substitution, with some slight modification, to all of which the plaintiff excepted, and he now relies on this action of the Court as one of the grounds for reversing the judgment and order denying a new trial. The change, however, was in some minor particulars, and the conclusion of law and judgment are the same as they were upon the finding first filed.

We know of no provision of the Practice Act authorizing the Court to re-examine the evidence upon the motion of one of the parties, after it has once filed its findings and rendered judgment, and on such re-examination to reverse its former action and substitute different findings of fact. Under the Act of 1861, and Section 180 of the Practice Act, as amended [531]in 1866, the Court is authorized to supply omissions and defects. We have often stated the object and scope of these provisions. (Hidden v. Jordan, 28 Cal. 304—5; Miller v. Steen, 30 Cal. 408; Cowing v. Rogers, 34 Cal. 648; Rice v. Inskeep, Id. 224.) But these provisions do not authorize a re-examination of the evidence for the purpose of correcting former errors, and changing the finding of facts. The mode provided for reviewing its former action by the same Court, as to the sufficiency of the evidence to justify the finding, is by motion for new trial. On the motion for new trial, when the Judge is of opinion that the damages are excessive under the evidence, he may require a portion to be remitted, as a condition of denying a new trial, and in this way, if submitted to, correct the error. Perhaps there may be other errors, which could readily be corrected in this way. But if there is an error of fact affecting the judgment, which cannot be obviated in this mode, we know of but one regular way to correct it, and that is by motion for new trial. (Carpentier v. Gardiner, 29 Cal. 163. See, also, Calderwood v. Pyser, 31 Cal. 337.)