Kahn v. Central Smelting Co.

EmersoN, J., delivered the opinion of the court, Sciiaeffeb, C. J., concurring, and Bobemau, J., dissenting: A motion is made to strike from the transcript on appeal [374] the portion thereof headed “ findings of fact at the request of plaintiff,” on the ground that they are not properly a part of the record. It appears that the case was tried by the court without a jury. The cause was submitted on the 17th November, 1877. Three days thereafter, on the 21 st, the court filed its findings of fact and conclusions of law, and- a judgment for the defendants entered on that day. The plaintiff excepted to the findings generally, as appears by the record. On the 5th day of December following, the plaintiff presented the findings covered by this motion, and at his request they were signed by the court. It was understood upon the argument, although not a part of the record, that these additional findings were presented to the attorneys for the respondents, and they were asked to consent to them, which they declined to do. The question is, are these additional findings under these circumstances properly a part of the record? Sec. 180 of the Practice Act provides that “ upon the trial of an issue of fact by the court, its decision shall be given in writing and filed with the clerk within ten days after the tidal shall have taken place. In giving the decision, the facts found and the conclusions of law shall be separately stated. Judgment upon the decision shall be entered accordingly.” The decision consists of the findings of fact and conclusions of law. The judgment is entered upon that decision. It is apparent, therefore, that whatever of findings there are in a case must, under the provisions of our act, precede and are the foundation for the judgment. When the objection is that the evidence does not support the findings, or that the findings are not in accordance with the evidence, it must be brought into the record on a motion for a new trial. The appeal is from the findings and judgment made and entered on the 21st November. There is no statement on appeal, and there was no motion for a new trial. In the case of Snell v. Cisler, 1 Utah, 298, this court decided that it would not review the facts unless a motion for a [375] new trial was made, based upon the insufficiency of the evidence to support the verdict or findings, and then only on an appeal from the order made on such a motion. James v. Williams, 31 Cal. 211; Cowing v. Rogers, 34 Cal. 648. The additional findings cannot be regarded as a statement, - because the statutory mode pointed out for making them such has not been followed. We do not think it is competent for the court, under our Practice Act, after making his findings, and judgment has been entered thereon, to supplement them at the request of a party by additional findings; the trial is then ended. The motion to strike the additional findings from the transcript is granted. This motion being disposed of, the only question in the case is, do the findings support the judgment? The findings of the court are as follows, viz.: First — That there was no partnership between plaintiff and defendants, as charged in the complaint. Second — That there was no such co-tenancy between plaintiff and defendants in the mine in controversy as entitled the plaintiff to an account. That the plaintiff has no right to recover in this action, and that the suit should be dismissed. It is claimed on the part of the appellant that the first finding of fact is a conclusion of law; that the facts going to establish or disprove the existence of the partnership should have been found. From an examination of the complaint it is apparent that the fact which the plaintiff seeks to establish in the case is that there was a partnership existing between him and the defendants; that a certain mine was worked by them as partners, and the conclusion of law following would be in accordance with the prayer of the complaint, that they should account to him for ore extracted from the mine during the existence of that partnership. The fact that there was a partnership is the ultimate fact alleged in the complaint. There are certain acts and condi [376] tions and circumstances set out in the complaint, from which this ultimate fact is deduced; that is, there is in the complaint much detail of mere evidentiary facts. The material issue of fact is, however, was there a partnership? And the findings respond to this issue. This was the ultimate fact to be ascertained, and it is none the less a finding of fact because drawn as a conclusion from other facts. Jones v. Clark, 21 Cal. 132. The judgment is in accordance with the findings and is supported by it. The judgment of the court below is affirmed.