Bailey v. Wilson

Napton, Judge, delivered the opinion of the court. This case was tried by the court under the practice act of 1849, and there was no finding of facts. The entry upon the record is: “ This cause being submitted to the court for trial, the court finds that said defendant is not guilty of unlawfully withholding from said plaintiff the possession of the premises in the petition mentioned, in manner and form as therein alleged. It is therefore considered by the court,” &o. "We understand this is a mere verdict of “ not guilty” in an action of trespass in ejectment, and no more constitutes such a finding of facts as was contemplated by the practice act than if the court had found simply “ for the defendant.” The statute says •: “ Upon a trial of a question of fact by the court, its decision shall be given in writing and filed with the clerk. In giving the decision, the facts shall first be stated and the conclusions of law upon them.” The object of the act was manifestly to enable parties to make a case for the revision of this court, in which the facts and law would separately appear, without requiring instructions and bills of exceptions. This purpose would be entirely defeated if the verdict of the court merely affirms or negatives the allegations of the petition or answer. It is urged in this case that, as the verdict was for the defendant, the practice heretofore prevailing in this court, to send the case back for a finding, is inapplicable and inappropriate. But we can not see any ground for such a discrimination. Judge Ewing concurring, judgment reversed and cause remanded. Judge Scott absent.