Leadbetter v. Lake

McFABLAND, J. Judgment went in the court below for defendants. Plaintiffs appeal from tbe judgment, bringing up only tbe judgment-roll, wbicb consists of the pleadings and the judgment. The appellants ask for a reversal upon the ground that there were no findings, and that findings were not waived. But all intendments are in support of a judgment, arid he who expects to reverse it must affirmatively show error. It has been established by a long line of decisions of this court that where the record is silent upon the subject a waiver of findings will be pr&-sumed. The fact that findings were not waived must affirmatively appear by a bill of exceptions, unless tbe judgment-roll shows it. (In re Arguello, 85 Cal. 151, and cases there cited on page 153.)

Appellants also claim a reversal upon the ground that there was no jury trial, and that a jury was not waived. The judgment shows that the cause “came on regularly to be heard before the \\ourt sitting without a jury,” and it nowhere appears that the [516]plaintiff demanded a juiy; and in snob a case the presumption is that a jury-was waived. In Montgomery v. Sayre, 91 Cal. 211, this court say: “If the question were, did the defendant waive his right to a trial by jury—the record being silent upon the question and the cause having been tried and determined by the court —there would be no difficulty, for the authorities are explicit to the end that such would be the presumption. (Boston Tunnel Co. v. McKenzie, 67 Cal. 490." See, also, Smith v. Brannan, 13 Cal. 115, 116.)

Appellants also claim a reversal because there was a joint judgment in favor of respondents for costs, while although sued jointly they answered separately—the contention of appellants being that there should have been a separate judgment in favor of each respondent -for his costs. But in such case there is no error in entering a joint judgment in favor of defendants. (Myers v. Moulton, 71 Cal 503.)

The judgment appealed from is affirmed.

■Temple, J., and Henshaw, Jl, concurred.