Kirman v. Hunnewill

McFarland, J. This action was brought to enjoin defendants from diverting the waters of a natural watercourse, and to recover damages for past diversion 'thereof. Judgment was rendered in favor of plaintiffs, and defendants, having made a motion for a new trial, and the court having denied the same, appeal from the order denying said motion. There is no appeal from the judgment.

1. Nearly the whole force of the arguments of appellants’ counsel is directed to the point that the findings do not support the judgment. In their final brief, after having referred to Dedmon v. Moffitt, 89 Cal. 211, they say: “We are not asking here, as was asked there, to reverse the judgment for want of a particular finding, but our contention is, that this judgment should be reversed because it is not supported by the findings made.” But it is definitely settled that the insufficiency of the findings to support the judgment cannot be considered on an appeal from an order denying a new trial. That point can be raised only on an appeal from the judgment. (Brison v. Brison, 90 Cal. 323; In re Doyle, 73 Cal. 564; Martin v. Matfield, 49 Cal. 45.) Counsel for appellants say, among other things, that certain general findings are inconsistent with certain special findings; that therefore the special findings should prevail; and that, upon the special findings, the judgment should have been for appellants. But that is nothing more than saying that the findings do not support the judgment,—a position which, as we have seen, cannot be taken on this appeal. If a court, upon an issue essential to the decision of the case, should make two findings directly contradictory of each other, the point might possibly be made, on an appeal from an [527]order denying a motion for a new trial, that there was no finding upon such essential issue, and therefore a mistrial. Such point, however, is not made here; and moreover, we find in this case no such contradictory findings.

2. There is some contention, apparently not much relied on, that the evidence is insufficient to support some of the findings. There are about six hundred pages of evidence in the printed transcript. Most of it consists of the testimony of witnesses by question and answer, apparently taken bodily from the reporter’s notes. It could hardly be expected that this court would critically examine this mass of matter, which ought to have been condensed to one sixth of its present volume. We have looked through it, however, and have seen no reason for disturbing the findings for want of support in the evidence.