Delany v. Toomey
| Decision Date | 11 June 1952 |
| Citation | 245 P.2d 26,111 Cal.App.2d 570 |
| Parties | DELANY v. TOOMEY et al. Civ. 14863. |
| Court | California Court of Appeals Court of Appeals |
Delany, Fishgold, Werchick & Minudri, Jack H. Werchick, San Francisco, for appellant-petitioner.
Wm. J. Dowling, Jr., Wm. B. Wetherall, San Francisco, James W. Harvey, San Francisco, Irving S. Rosenblatt, Jr., San Francisco, for real party in interest.
In this proceeding for a writ of mandate requiring respondent Thomas A. Toomey, as Registrar of Voters, to certify petitioner as the newly elected Chairman of the Democratic County Central Committee of San Francisco, judgment was entered in the form of a minute order reading,
Petitioner has appealed from those portions of the judgment which denied the petition and dissolved the restraining order. The restraining order was incidental to and a part of an alternative writ which had been issued, containing a recital that such a writ should issue 'together with a temporary restraining order pending the hearing on said writ.'
The appeal must be dismissed because taken from an order entered in the minutes upon the trial of issues of fact (not an order of nonsuit) made without findings of fact or waiver of findings.
Findings of fact are required, unless waived, upon the trial of a question of fact in a civil action. Code Civ.Proc. sections 632-634. This requirement is made applicable to a mandamus proceeding by section 1109 of the Code of Civil Procedure, which declares that 'Except as otherwise provided in this title [which includes sections 1084-1097, relating to the writ of mandate], the provisions of part two of this code [in which part sections 632-634 occur] are applicable to and constitute the rules of practice in the proceedings mentioned in this title.' We find nothing in the title mentioned (sections 1067-1110b of the code) which dispenses with the requirement for findings of fact in a mandamus proceeding. Without discussion of section 1109, the court in Davis v. State Board of Optometry, 35 Cal.App.2d 428, 95 P.2d 959, held that findings of fact are required upon the trial of questions of fact in a mandamus proceeding. Steen v. Board of Civil Service Com'rs, 26 Cal.2d 716, 160 P.2d 816, does not hold differently. Findings of fact were not necessary in that case because there had been no trial of questions of fact. No writ had been issued and no answer or return had been filed. The hearing was held pursuant to section 1107 of the Code of Civil Procedure, 'under which a copy of the petition for the writ is served on the respondent before an alternative writ is issued and the respondent may file points and authorities in opposition to it.' 26 Cal.2d at page 727, 160 P.2d at page 822. Accordingly, a denial of the petition by minute order without findings was sufficient.
There was a trial of questions of fact in the court below. Upon the filing of the petition, an alternative writ of mandate was issued requiring respondent Toomey as registrar of voters to issue the certificate demanded by the petitioner and to strike from his files a certificate showing that William M. Malone was the chairman of the committee, or to show cause at a time and place specified why he had not done so. On the return date, respondent Toomey filed his answer and return to the petition and respondent Malone as the real party in interest filed an answer. Each of these pleadings presented questions of fact to be decided by the court. In addition, Malone filed a demurrer to the petition and a motion to strike certain portions of the petition.
Shortly after the filing of the answer, the demurrer, and the motion to strike, the court, upon petitioner's request, continued the hearing to a later hour of the same day, to enable counsel for petitioner to examine the papers served that morning. At the postponed session, lengthy arguments were presented with reference to the demurrer and the motion to strike. Thereupon, the court asked 'Is that all you are going to present to this Court this afternoon?' to which counsel for petitioner replied: 'We are ready to proceed, your Honor, on the writ of mandate, but we presume we have to have a ruling on this demurrer to the motion.' The court responded 'I don't intend to rule on it until I have an opportunity to investigate the matter myself.' Counsel for petitioner then made an opening statement, during the course of which a number of stipulations of fact were made by the parties. He then put six witnesses upon the stand, all upon direct examination except respondent Toomey whom he called under section 2055 of the Code of Civil Procedure. Of the other five, four were cross-examined and two gave testimony upon redirect examination. In addition,...
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...are required unless waived by the parties. (Lassen v. City of Alameda, supra, 150 Cal.App.2d 44, 48, 309 P.2d 520; Delaney v. Toomey, 111 Cal.App.2d 570, 571, 245 P.2d 26; Beloin v. Blankenhorn, 97 Cal.App.2d 662, 664, 218 P.2d 552.) In the instant case no findings were made by the court be......
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