Himmelman v. Henry
Before: Beatty
Synopsis
Ejectment — Special Defenses — Findings — Appeal from Judgment— Presumption. —When the findings in an action of ejectment sustain all the material allegations of the complaint as against the denials of the answer, but do not pass upon special defenses set up in the answer, and the appeal is upon the judgment roll alone, without any statement of the evidence or bill of exceptions, it will not be presumed, against the correctness of the judgment, that there was any evidence in support of the special defenses, and the judgment will not be reversed for failure to find thereupon.
Appeal — Findings — Support of Judgment—Failure to Find upon Issue — Want of Evidence. —-The findings of the court must be sufficient to support the judgment, and must contain nothing inconsistent with it; but a failure to find upon an issue, a finding upon which would merely have the effect of invalidating a judgment fully supported by the findings made, will not be held ground for reversal, unless it is shown by statement or bill of exceptions that evidence was submitted in relation to such issue.
Beatty, C. J. The judgment appealed from in this case was affirmed by Department Two, upon the grounds stated in the following opinion:—
“ This is an action of ejectment. The answers, in addition to general denials, set up certain alleged special defenses. The court, trying the case without a jury, found that the plaintiff was the owner, and seised in fee and entitled to the possession, of the premises in suit, and that defendants ousted plaintiff therefrom, and wrongfully and unlawfully withhold possession thereof, but there is no finding as to the alleged special defenses. [105]Judgment went for plaintiff, and defendants appeal from, the judgment upon the judgment roll alone.
“Appellants’ main contention is that the judgment should be reversed, because there is no finding on all the issues raised, or alleged to have been raised, by the pleadings. But a judgment will not be reversed for want of a finding on an issue with respect to which there is no evidence. In Wise v. Burton, 73 Cal. 175, this court say: ‘This court will not reverse for want of a finding on an issue, where there is no evidence in relation to such issue.’ In the case at bar,— w'hich is brought here upon the judgment roll alone,-—-we will not presume, against the correctness of the judgment, that there was evidence upon a point in respect to which there is no finding. This view of the case makes it unnecessary to consider the question whether or not the alleged special issues were material. We think the findings support the judgment. Judgment affirmed.” (21 Pac. Rep. 731.)
Afterward a rehearing in bank was ordered, because there appeared to be some conflict between the decision of Wise v. Burton, cited in the opinion of the Department, and the later case of Leviston v. Ryan, 75 Cal. 293, and some earlier cases cited in the petition for rehearing. A careful re-examination of all the decisions on this point has convinced us that there is no real conflict between the decision in Wise v. Burton, and any of the earlier or later decisions.
The proposition stated in Wise v. Burton is, that “ this court will not reverse for want of a finding on an issue, where there is no evidence in relation to such issue.” This was a sufficiently accurate statement of the rule for the purposes of that case, in which the facts found fully supported the judgment, and the only issue undetermined arose upon an affirmative allegation of the answer. In the case of Leviston v. Ryan, the plaintiff in ejectment relied upon a patent for the demanded prem
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