Gregory v. Gregory
Synopsis
Appeal—Stay op Proceedings—Nonappealable Order—New Trial. An appeal from an order denying a motion to set aside a judgment for want of finding of fact to support it, which is dismissed by the court upon the ground that the order appealed from was not an appealable order, could not operate to stay proceedings in the court below, nor deprive the court of power to hear and deny a motion for a new trial.
Id.—Findings—Agreed Statement.—-Findings are not required upon facts about which there is no dispute, and none are necessary where an agreed statement covers all the facts in the case.
Id.—New Trial—Facts Agreed.—A new trial is a re-examination of an issue of fact in the same court, and where all the facts are agreed upon, there is no issue of fact to be re-examined, and no ground for a new trial.
Id.—Statement—Absence op Specification.—Where there are no specifications of insufficiency of the evidence to justify the decision or of errors of law occurring at the trial, a new trial is properly denied.
Id.—Recitals op Judgment—Agreed Statement—Review Upon Appeal. Where the judgment recites that the cause was decided upon an agreed statement of all the facts, such agreed statement may be considered upon appeal, whether it constitutes a part of the judgment-roll or not.
Tenancy in Common.—Possession in Severalty—Advbp.se Possession— Statute op Limitations.—Tenants in common who have entered into the actual possession in severalty of parcels of the land respectively claimed by them, under claim and color of title, and who, with their predecessors in interest, have maintained possession and exercised acts of ownership openly and notoriously,claiming the same adversely to other cotenants who were of age, and to all the world, and paying all taxes assessed thereon for more than five years prior to the commencement of an action against them, thereby acquire a title by prescription under the statute of limitations.
Id.—Notice to Cotenants.—Possession so taken and held in severalty under claim and color of title is sufficient to give all cotenants notice of the adverse claim, and to put the statute of limitations in motion in favor of the adverse possessors.
The Court. This is an action to quiet the plaintiffs’ title to an undivided four-fifths interest in certain real property situate in the county of Placer. The case was submitted to the court below for decision upon an agreed statement of facts from which the court drew certain conclusions of law, and in accordance therewith rendered judgment in favor of the defendants. From this judgment, and an order denying their motion for a new trial, the plaintiffs appeal.
1. After the judgment "was entered, the plaintiffs moved the court to set it aside upon the ground that findings had not been waived, and there were no-findings of fact to support it. This motion was denied, and the plaintiffs appealed from the order. Appellants now contend, that after that appeal was perfected it stayed all further proceedings in the court below, and therefore that court had no power to hear and deny the plaintiffs’ motion for a new trial. A sufficient answer to this contention is that on March 9, 1893, the appeal referred to was dismissed by this court upon the ground that the order appealed from was not an appealable order. (32 Pac. Rep. 531.)
2. Appellants also contend that the judgment should be reversed, because findings of fact were not waived, and none were filed by the court below. This contention cannot be sustained. The agreed statement covered all the facts of the case, and if findings had been made, they -would have been simply a restatement of facts already agreed upon, and about which there was no controversy. But it is well settled that findings are [52]never necessary upon questions about which there is no dispute. For example, findings are not necessary where the allegations of the complaint are not denied, or as to facts admitted by the pleadings. (Pomeroy v. Gregory, 66 Cal. 572; Taylor v. Central Pac. R. R. Co., 67 Cal. 615.) And where a finding made is conclusive against the right of the plaintiff to recover, findings upon other issues are unnecessary to support the judgment against him. (Dyer v. Brogan, 70 Cal. 136.) So a judgment will not be reversed for want of a finding upon a particular issue, where it is apparent that the omission in no way prejudiced the appellant. (Murphy v. Bennett, 68 Cal. 528.) So an issue raised by a defense upon which no evidence is offered at the trial and no finding made is deemed immaterial, and the judgment will not be reversed for want of a finding. (Senter v. Senter, 70 Cal. 619; Himmelman v. Henry, 84 Cal. 104; Rogers v. Duff, 97 Cal. 66.)
3. The order denying the plaintiffs’ motion for new trial cannot be reviewed here on appeal, for two reasons: 1. A new trial is a re-examination of an issue of fact in the same court. (Code Civ. Proc., sec. 656.) In this case, as all the facts were agreed upon, there was no issue of fact to be re-examined, the only question being as to what was the law applicable to those facts; 2. The statement contains no specifications of the particulars in which the evidence was insufficient to justify the decision, or of any errors in law occurring at the trial.
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