Watson v. Buckler

Opinion by Mr. Justice Wolverton. 1. The plaintiff contends that the judgment is not supported by the findings of fact; that it is found in effect that the creditors of the defendants had attached the property prior to the commencement of the action; that thereby the defendants had suffered a breach of one of the mortgage conditions, by reason whereof the plaintiff became and was entitled [238] to possession; and that the conclusions of law are erroneous deductions from the facts found, heneo the judgment is without the requisite support. It is clear that until the mortgagors have suffered a breach of some stipulated condition of the mortgage, they are entitled to the possession of the property covered thereby, as against the mortgagee. Plaintiff’s cause of action is dependent upon his right of possession, he must therefore establish the breach, or fail in his purpose. Conceding, without deciding, that an attachment by a creditor of William Buckler would be a breach of such condition of the mortgage we will consider the effect of the findings. Do they show that the property was attached or levied upon? A meaningless finding of fact or one so obscurely stated as to render its import dubious and uncertain should be disregarded, as it establishes nothing from which the law may deduce a result: Figg v. Mayo, 39 Cal. 264. The findings, however, have the effect of a special verdict, which should receive a reasonable construction, and are not to be avoided unless from doubt of their meaning or from the immateriality of the issue found: Hallock v. City of Portland, 8 Or. 39; 28 Am. and Eng. Ency. of Law, 354; Woodward v. Davis, 127 Ind. 173 (26 N. E. 687). Two or more findings may be read together, for the purpose of ascertaining the precise shade of meaning intended: Kimball v. Lohmas, 31 Cal. 157; Dixon v. Duke, 85 Ind. 437. The language of finding sixth is: “ Said constable proceeded to attach, or attempted to attach,” but the defendants “ settled said cause and the amount [239] claimed in said action, and said attachment was dissolved.” It must be admitted that, when read alone, there is some uncertainty as to its exact meaning. The seventh finding is easily understood. From this there is, perhaps, an implication that the defendant Eleanor H. Buckler admitted the attachment by making a demand in writing claiming the property as hers, and hence not subject to attachment in that cause, but it is possible that the property may not have been attached when she made the demand for it. Finding tenth is more general, and is to the effect that defendants had not suffered a breach of any of the conditions of the mortgage prior to the commencement of the action, and may be said to include the sixth finding. If taken as resulting therefrom, it would bear very much the semblance of a conclusion of law, but the court has stated it as a conclusion of fact.* Viewing it as such, it is entirely inconsistent with the idea of an actual attachment. So that, construing the findings as a whole, we must conclude that the intendment of finding sixth is not that there was an actual seizure of the goods, but that while proceeding to attach, that is to say, while making an attempt to attach, and before the service of the writ had been perfected, the cause was settled, and the attachment proceedings rendered ineffectual. The defendants, by preventing the attachment of the mortgaged property, avoided a breach, and hence the judgment is supported by the findings in this respect. 2. Error is predicated upon the refusal of the circuit court to permit the plaintiff to file an [240] amended complaint, which was offered there for the first time. But if otherwise competent, the matter was within the sound discretion of the court below, and is therefore not reviewable here. There was certainly no abuse of discretion. 3. Another matter complained of is that the judgment, which is for a return of the property, or, in case return thereof cannot be had, then for its value, is in favor of defendants jointly. But it is such as plaintiff ought to have expected if unsuccessful in the action. The instrument upon which the action is based was executed by defendants jointly. They were sued and answered jointly, and the court found that they were at the date of the commencement of the action in possession and lawfully entitled thereto. The judgment was a logical sequence: Myers v. Moulton, 71 Cal. 498 (12 Pac. 505); West Michigan Savings Bank v. Howard, 52 Mich. 423. Other questions were argued, but this disposes of all that properly arise upon the record. Let an order be entered affirming the judgment of the court below. Affirmed.