Gordon v. Donahue

Gibson, C. —Action to recover compensation for services as nurses, rendered to defendant by plaintiff and two other persons, which other persons respectively assigned their demands therefor to the plaintiff.

The case was tried before the court without a jury, and on the twelfth day of October, 1885, judgment in favor of plaintiff, as prayed for in her complaint, was announced by the court and was entered on the fourteenth day of the same month; from this judgment the defendant appeals.

Defendant urges as the sole reason for the reversal of the judgment that the instrument set forth in the transcript and denominated “findings,” and bearing date [502]of November 11, 1885, and which date is appended under the signature of the judge, and no indorsement of filing appearing anywhere thereon, contains the only findings of fact and conclusions of law that were filed in the case, and the judgment having been entered prior to the filing of findings of fact and conclusions of law, the same not having been waived, is unsupported by findings, and consequently erroneous, and that the filing of the findings bearing date of November 11, 1885, as aforesaid, did not and could not correct the error.

To sustain this position, defendant assumes that the date on the face of the so-called findings under the signature of the judge and the situation of the paper in the transcript immediately after the judgment, no other findings appearing in the judgment' roll, conclusively shows that such paper must have been filed after the judgment. This assumption, as will appear from what follows, is based on an unstable foundation.

There is no bill of exceptions in the record, —nothing by which it can be determined whether findings were not waived, or whether the so-called findings in the record were filed before or after the judgment was entered, unless the mere date on the so-called findings can be taken as prima facie evidence of the time the findings were signed, on the theory that the signing or authentication of findings should precede the filing, and could not have been filed prior to such date, which is twenty-eight days after the entry of the judgment. The only thing in the record showing that the paper referred to as findings was ever filed is the certificate of the clerk to the transcript, reciting that all the papers in the transcript are correct copies of the originals on file in his office.

In Mulcahy v. Glazier, 51 Cal. 626, the court said: “ It is a well-settled rule that upon appeal taken error is not to be presumed, but must be affirmatively shown. Where, therefore, as here, a cause is tried by the court