Semple v. Ware

CROCKETT, J. — The record on this appeal presents precisely the same questions, which are considered in the case of Yates v. Smith, [38 Cal. 60], decided at the present term, with the exception that this case is now for the first time in this court, [658]and is therefore free from any enbarrassment arising from a prior adjudication in this particular case of the questions which govern it; and we would, therefore, be at liberty to consider the relative values of the two titles which are involved in the action, provided the appellant had presented them in such a form as to enable us to look into them. If he had moved for a new trial, supported by a proper statement containing the evidence and assigning as a ground of the motion, that the evidence was insufficient to justify the judgment and the implied findings in support of it, we would have been at liberty, on an appeal from the order denying the motion, to consider the question whether the judgment and the implied findings were justified by the evidence. But in the case of Reed v. Bernal, decided at the present term, we held, after careful deliberation, that this question can only be presented in that method; and that on an appeal from the judgment alone, supported by a statement on appeal, we cannot look into the question whether the proper judgment was rendered, unless there were written findings or an agreed statement of facts forming a part of the judgment-roll. In this ease there was no motion for a new trial, nor any written findings or agreed statement of facts; and on the authority of Reed v. Bernal we are not at liberty to look into the evidence to see whether it justified the judgment. All the other questions arising on the appeal are decided adversely to the appellant in the case of Yates v. Smith above referred to.

Judgment affirmed.

We concur: Wallace, J.; Rhodes, C. J. Mr. Justice Temple, being disqualified, did not participate in the decision of this case.