Van Court v. Winterson
Synopsis
Findings—New Trial — Bill of Exceptions — Vacating Judgment— Practice.—Pursuant to an order of the Court below, the Clerk entered judgment in favor of the defendant, but subsequently the Court, on motion of plaintiff, vacated the judgment and restored the ease to the calendar for trial for the reason that it appeared that no findings had been made, and that findings were not waived.
Held: Upon an appeal from the judgment, it would, in order to sustain the judgment, have been presumed that findings had been filed cr waived; but in this case that presumption is overcome by the bill of exceptions showing the facts.
The Court : The Court below made an order (which was entered in the minutes), that judgment be entered in favor of defendant. Thereupon, the Clerk entered judgment. Subsequently, the Court, on the motion of the plaintiff, ordered the judgment to be set aside, and the cause restored to the calendar for trial, for the reason that it appeared to the Court that no findings of fact were ever prepared, signed, or filed, and the findings were not waived.
We see no error in this. If the judgment had been appealed from, we would, in order to sustain the judgment, presume that findings had been filed or waived; but in this case that presumption is overcome by the statement in the bill of exceptions that there were no findings, and that findings had not been waived.
The orders are affirmed.
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