Wheatland Mill Co. v. Pirrie
Before: Foote
Synopsis
Trial — Submission of Cause—Decision—Request for Findings of Law. — Where a cause has been tried and submitted for decision to the court upon the law and facts, and the court has orally announced its decision, but has not filed its findings, it cannot be compelled to pass upon propositions of law submitted to it as proposed findings.
San Francisco — Act to Regulate Fees — Percentage upon Judgment — Replevin. — Section 6 of the act of February 9, 186G, entitled “ An act to regulate fees in the city and county o£ San Francisco,” which provides that the prevailing party in certain actions, shall be allowed five per cent on the amount recovered in litigated cases, not exceeding one hundred dollars on any one judgment, does not include a judgment in the alternative in an action of replevin for the return of the property, or its value with interest.
Foote, C This is an action of claim and delivery for a quantity of flour by the Wheatland Mill Company against William Pirrie.
Judgment was rendered for the defendant for the return [461]of the flour which the plaintiff had received, or the value thereof and interest. From that judgment, and an order refusing a new trial, the plaintiffs have appealed.
The defendant appeals from an order retaxing costs, by which the sum of one hundred dollars, claimed as percentage under section 6 of the act of the legislature to he found in the Statutes of 1865-66, at page 66, in relation to fees in the city and county of San Francisco, was struck from his memorandum of costs.
The appellant contends that the trial court committed error “in denying their request that it would pass upon certain propositions of law presented by plaintiff, and give the same as applicable to the case, and in refusing to pass upon said propositions and to rule that the same were correct and applicable to the case.”
The cause came on to be tried, the court sitting without a jury, on the twentieth day of March, 1888, and on that day, upon the evidence produced, was considered and heard by the court; and it was then submitted for decision on briefs to be filed by respective counsel, which was done. On the fourth day of May following, the court announced its decision orally for the defendant.
Upon the sixteenth day of the same month, before the written findings were filed, the propositions of law, which are nothing more than instructions to the court by the court, put in such a form that such tribunal could answer yes or no, and thus put itself on record as to its views of the proposition of law therein involved, were presented to the court, and it refused to consider them, making two indorsements thereon on the twenty-first day of May, 1888; one indorsement refusing to pass upon or give them as applicable to the case, the other treating them as proposed findings, and refusing the request to sign and settle the same, because the court had upon that day signed and filed findings of fact in accordance with its decision.
We fail to perceive any good ground upon which it [462]
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