Smith v. Acker

The first finding is a general verdict. The additional findings •are a special verdict. In such case the special finding prevails over the general one. (Leese v. Clark, 20 Cal. 387; McDermott v. Higby, 23 Ibid., 489.)

James B. Townsend, for the Respondent.

The Court can only consider the ultimate facts found. (Pico v. Cuyas, 47 Cal. 178.) The additional findings can have no ■effect as against the original findings, because they are nowhere •stated to contain all the facts, nor all the material facts which were proved on the trial.

It is nowhere stated or shown that the only proof by which defendants established that they were “ seized in fee,” was the proof which is briefly sketched in said “ additional findings.” So far as shown by said “ additional findings,” or by the record herein, said defendants may have established their “ seizin ” and right of possession by a title other than and paramount to that of the “Bodega Grant”; or by conveyances other than those made by said guardian, Tyler Curtis; or by deeds or other acts of confirmation of said guardian’s sales, executed by said minor •after attaining his majority. Nothing to the contrary of these several suppositions is shown, and the rule of law is fixed, that all presumptions, not expressly negatived, are to be indulged in support óf a judgment. (Mulcahy v. Glazier, 51 Cal. 626.)

The California Code of Civil Procedure has prescribed the only modes by which a losing party can test the sufficiency of the facts proved “ to justify the verdict, or other decision.” Those modes are not, by the Court’s “ finding” those probative facts, but by their embodiment in a statement of the case, (prepared and settled either before or after a motion for a new trial) and by a “motion for a new trial,” founded thereon, after service within a limited time, upon the adverse party, of a written “ notice ” that such party intends to make such motion, specifying the grounds upon which it is to be made, and after [219]service of such “ statement,” (when prepared before the motion) upon the adverse party specifying the grounds of such motion in detail, giving him, thereby, the opportunity to propose such “ amendments ” thereto as the “ grounds ” of the motion indicate to be necessary. (Cal. Code Civ. Proc., secs. 657, 659—subds. 3 and 4—661.

By the Court : On the 30th day of June, 1876, the District Judge made his findings in this cause. There is no pretense that these findings were not sufficient to sustain the judgment.