Parker v. Beagle

SULLIVAN, J. This action was brought to foreclose a mortgage. The appeal is from the judgment presented on the judgment-roll. The error assigned is: “The court erred in giving its decision, and not making findings of fact as well as conclusions of law, and stating them separately.” The record contains no findings of facts or conclusions of law, separately stated, and none whatever, except those contained in the decree and judgment. Section 4408 of the Revised Statutes provides that findings of fact may be waived, and, as the record does not show affirmatively that findings of fact were not [454] waived, the presumption is that they were. If they were not waived, that fact must affirmatively appear in the record. (Squier v. Lowenburg, 1 Idaho, 785 ; Toulouse v. Burkett, 2 Idaho, 288, 13 Pac. 172.) Error will not be presumed, but must appear affirmatively from the record. The-judgment of the court below is affirmed, with costs of this appeal in favor of respondent. Morgan, C. J., and Huston, J., concur.