Daggs v. Hoskins

• Decision Date: 23 February 1898
• Docket Number: Civil 620
• Citation: 5 Ariz. 300,52 P. 357
• Parties: J. F. DAGGS, Plaintiff and Appellant, v. J. H. HOSKINS, JR., et al., Defendants and Appellees
• Court: Arizona Supreme Court

52 P. 357

5 Ariz. 300

J. F. DAGGS, Plaintiff and Appellant, v. J. H. HOSKINS, JR., et al., Defendants and Appellees

Civil No. 620

Supreme Court of Arizona

February 23, 1898

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. Owen T. Rouse Judge. Affirmed.

The facts are stated in the opinion.

George W. Glowner, and J. E. Jones, for Appellant.

If an order be made changing the venue of a cause, the original court immediately loses jurisdiction of the cause; and since Judge Hawkins lost jurisdiction by making the order for the change of venue, any judge taking his place had no jurisdiction in the county of Coconino.

"When a change of venue is directed, . . . the court or judge shall send a cause to the most convenient county in the adjoining district." Act 1891, No. 40, p. 40. This is mandatory and after ordering that the change of venue be granted the court had no jurisdiction to say that the case be tried in the county of Coconino, the county from which the change had been granted. Flagley v. Hubbard, 22 Cal. 37; Hatch v. Galvin, 50 Cal. 443.

The decision of a court is the findings of fact and the conclusions of law, which shall be separately stated.

The judgment is founded upon the decision, upon which it stands or falls. Without them the judgment falls. There being no decision in this case, the judgment cannot stand.

"The facts found and the conclusions of law shall be separately stated; judgment upon the decision shall be entered accordingly." Laws 1897, p. 60, Act No. 22. This act is mandatory. It therefore follows that a cause having been tried by the court without a decision a judgment cannot stand. The intention of the act is, that the decision of the court upon the facts shall form the basis of the judgment in like manner as the verdict of a jury. Russell v Armadon, 2 Cal. 305.

Edward M. Doe, for Appellees.

The appellant objects that there were no separate findings of fact and conclusions of law, as required by our statute. This is true; and although under well-settled rules of statutory construction the requirement would seem to be directory, yet the supreme court of California has repeatedly held it to be mandatory. It does not appear, however, from the record that the appellant requested separate findings of fact and conclusions of law, and in view of the presumption which always prevails in favor of the judgment, it should be presumed in this court that the appellant waived the separate findings in the court below. Lee Chuck v. Wo Chong &amp Co., 91 Cal. 592, 28 P. 44; Mulcahy v. Glazier, 51 Cal. 627; Campbell v. Coburn, 77 Cal. 37, 18 P. 860.

OPINION

SLOAN, J.

-- The only assignments of error made by counsel for appellant in his brief which are sufficiently definite to be considered are: 1. That the judge who presided at the trial below had no jurisdiction to sit therein, or make any order in the disposition thereof; and 2. The judgment is invalid because the trial court failed to file findings of fact and conclusions of law. The record shows that, after issues had been joined in the court below, a motion for a change of venue, based upon the prejudice of the presiding judge, was filed by the appellant. Thereupon the Honorable J. J Hawkins, presiding judge, made and entered an order transferring the cause to the Honorable J. D. Bethune for trial. The latter, being unable to try the case on account of illness, made and entered an order transferring the cause to the Honorable Owen T. Rouse for trial. A similar order was made and entered by the presiding judge of the district. The first order made transferring the cause reads as follows: "Motion in the above cause to change venue having been heretofore taken under advisement, the court this day renders his decision therein, ordering that the motion be granted, and that, Judge J. D. Bethune having consented to hear the above case at Flagstaff, Coconino County, in the near future, it was ordered by the court that said cause be assigned to him at the place last aforesaid for trial." It was contended by counsel for appellant that under this order the district court of Coconino County lost jurisdiction of the cause. Act No. 40 of the Laws of 1891, in section 1 thereof, provides that: "Section 1. Whenever either party to a civil action in any district court of the territory shall make and file an affidavit in the case, stating one or more of the following causes: First: That the judge of said court has been engaged as counsel in the case prior to his appointment as judge, or is otherwise interested in the case; or, second: That said judge is of kin, or related to either party; or, third: That the affiant has cause to believe and does believe that on account of the bias or prejudice or interest of said judge, he cannot obtain a fair and impartial trial; or, fourth: That...