Kimball v. Stormer

McKinstry, J. The appeal is by plaintiff from a judgment and order denying a new trial in an action of “ejectment.”

The complaint is in the usual form; the answer denies the averments of the complaint, and avers that the cause of action is barred by sections 318 and 319 of the Code of Civil Procedure.

A jury having been waived, the action was tried by the court. -- Within thirty days after the cause was submitted for decision the court filed with the clerk a paper writing in words following: —

“Decision.

“ [Superior Court, County of Colusa.]

“Thos. E. Kimball) v. V S. I. Stobmeb. )

“Under the testimony introduced I am of the opinion that at the time this action was brought the defendant had acquired a title to the premises in controversy, by virtue of the provisions of the Statute of Limitations. Judgment is therefore ordered for the defendant.”

(Signed, by the Judge.)

[117]Thereupon judgment was entered: —

(Title of court and cause.)

“ This cause coming on regularly for trial on the-day of -, 1881, plaintiff and defendant appeared by their respective counsel, and the cause was tried by the court without a jury, a jury having been waived by the parties to said action. The evidence of plaintiff and defendant was introduced in due form and the cause subsequently argued to the court by the respective counsel, and then taken under consideration by the court; and the court having fully considered said cause and being fully advised as to the law and the evidence, makes and files its written decision in favor of the defendant and against the plaintiff, and orders judgment accordingly. Wherefore,” etc.

The Code of Civil Procedure provides: “ Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision. In giving the decision the facts found and the conclusions of law must be separately stated. Judgment upon the decision must be entered accordingly.” (§§ 632, 633.)

From the “ decision” filed it is apparent that the Court below intended to find that defendant had been in adverse possession for more than five years, and therefore, as a conclusion of law, that he was entitled to judgment. Finding thus, the court deemed it unnecessary to find whether the plaintiff did or did not have title prior to the running of the statute. If the finding as to adverse possession had been sufficient, and the evidence had sustained it, we would affirm the judgment, holding that the question, whether the plaintiff had or had not title originally, was immaterial. But, as we shall see, the evidence does not justify the finding in favor of defendant upon the plea of the Statute of Limitations. The case is to be treated, therefore, as one in which the court below, upon insufficient evidence, found that the defendant had acquired title by adverse possession, but failed to find whether the plaintiff had title and right of possession independently of the question of adverse possession. We are not prepared to say that the evidence clearly and unmistakably shows the plaintiff had no title to the premises in controversy, and that defendant is the owner of them. We expressly