Later v. Haywood

• Decision Date: 07 January 1908
• Citation: 93 P. 374,14 Idaho 45
• Parties: PETER LATER, RICHARD LATER and SAMUEL S. LATER, a Copartnership, Doing Business Under the Firm Name and Style of LATER BROS., Appellants, v. MARTHA HAYWOOD, Respondent
• Court: Idaho Supreme Court

93 P. 374

14 Idaho 45

PETER LATER, RICHARD LATER and SAMUEL S. LATER, a Copartnership, Doing Business Under the Firm Name and Style of LATER BROS., Appellants, v. MARTHA HAYWOOD, Respondent

Supreme Court of Idaho

January 7, 1908

FINDINGS-SPECIFICATIONS OF ERROR-MATERIAL ISSUES.

1. Where an appeal is taken from a judgment within sixty days from the rendition thereof, to authorize this court to examine the evidence for the purpose of determining whether the evidence supports the findings and judgment, it is necessary that the appellant specify the particulars in which it is alleged the evidence fails to support the findings and judgment, and such specification of error must be embodied in and be a part of the bill of exceptions.

2. Where the appellant specifies in his brief that the evidence does not support the findings and judgment, and fails to specify such error in the bill of exceptions, this court will not examine the evidence for the purpose of determining whether or not it supports the findings and judgment.

3. Where the trial court fails to find on all the material issues, the judgment will be reversed unless a finding thereon either for or against the successful party would not affect the judgment entered.

4. The finding of ultimate facts includes the finding of all probative facts necessary to sustain the findings of the ultimate facts.

5. Where probative facts are found, and the court can declare that the ultimate facts necessarily result from the facts which are found, the finding is sufficient.

6. Where the court fails to find on the material issues in the case, and if a finding had been made thereon the judgment might have been different, it is reversible error.

7. Where the findings made are not conclusive against the plaintiff's right to recover, findings upon other issues necessary to support the judgment must be made.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District for Fremont County. Hon. J. M. Stevens, Judge.

Action to declare a deed in form, a mortgage. Judgment for defendant. Plaintiffs appeal. Reversed.

Judgment reversed. Costs awarded to the appellant.

Caleb Jones, for Appellants.

Failure to find on all material issues is ground for the reversal of the judgment. (Paulson v. Nunan, 54 Cal. 123; Byrnes v. Claffey, 54 Cal. 155; Pacific Bridge Co. v. Kirkham, 54 Cal. 558; DuPrat v. James, 61 Cal. 361; Duane v. Neumann, 2 P. 274; Hawes v. Green, 3 P. 496; Porter v. Muller, 65 Cal 512, 4 P. 531; Casey v. Jordan, 68 Cal. 246, 9 P. 99, 305.)

"Where the verdict is opposed to the testimony of the defendant, and other disinterested witnesses, who contradict the testimony of plaintiff, upon which, alone, the verdict rests, it will be set aside." (Chicago etc. Ry. Co. v Herring, 57 Ill. 59.) In this case the findings rest absolutely upon the evidence of the defendant, which is contradicted by fourteen witnesses and eight written exhibits presented by the plaintiffs.

Holden Holden, Holden & Holden, for Respondent.

The findings of the trial court respond to the issue in this suit and support the judgment. It is not necessary to make findings as to merely probative facts.

As appellants have failed to point out in their assignments of error the particulars in which the evidence is said to be insufficient to support the findings, this court will not consider the objection. (Kyle et al. v. Craig, 125 Cal. 107, 57 P. 791.)

The bill of exceptions in this case does not contain an exception to the decision of the court, either upon the grounds of the insufficiency of the evidence to sustain it or upon any other ground.

The law requires that an exception to the decision of the court upon the ground of the insufficiency of the evidence to sustain it shall be incorporated in the bill of exceptions, and that the objection must specify the particulars in which such evidence is alleged to be insufficient. (Sec. 4428, Rev. Stat.; Hole v. Van Duser, 11 Idaho 79, 81 P. 109.)

"Where the matters which are found necessarily defeat the plaintiff's right of recovery, it is unnecessary that the findings should dispose of any further issues." (Smith v. Dubost, 148 Cal. 622, 84 P. 38.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This case was before this court on a former appeal from a judgment of nonsuit, entered after the plaintiffs had concluded their evidence, and is reported in the 12th Idaho, at page 78, 85 P. 494. Upon reversal of the judgment of nonsuit, the cause was retried in the district court and findings of fact, conclusions of law and a decree entered in said cause, in favor of the defendant. From this judgment the plaintiffs appeal. The appellants assign fifty-six errors, fifty-five of which are errors of law alleged to have occurred during the trial of said cause. Specification 56 is as follows: "The findings of fact in this case are wholly insufficient to support the judgment in that they do not respond to the issues in this case; that they are not definite nor certain; that they are contradictory; that they are not supported by the evidence; that they are contrary to the evidence; and that no findings have been made of the most material issues in the case, as presented by the pleading."

A large part of appellants' brief is devoted to a discussion of the question as to whether each finding is supported by the evidence, and as to whether the evidence supports the judgment of the court. Sec. 4807, Rev. Stat., provides that "an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment." The judgment in this case was made and filed on the 19th day of December, 1906, and the appeal was taken within sixty days thereafter. Sec. 4428, Rev. Stat., provides: "No particular form of exception is required. But when the exception is to the verdict or decision upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient. The objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more. Only the substance of the reporter's notes of the evidence shall be stated. Documents on file in the action or proceeding may be copied, or the substance thereof stated, or a reference thereto sufficient to identify them may be made."

These two sections must be read together, and while the former provides that a decision of the court may be reviewed on appeal when the appeal is taken within sixty days from the rendition of the judgment, the latter section provides that where the exception is to the decision of the court, upon the ground of insufficiency of the evidence to support the judgment and findings, the bill of exceptions must contain the specifications of the particulars in which the evidence is alleged to be insufficient to sustain the findings or judgment, or it will be disregarded. (Hole v. Van Duzer, 11 Idaho 79, 81 P. 109; Coglan v. Beard, 67 Cal. 303, 7 P. 738; Commercial Bank v. Redfield, 122 Cal. 405, 55 P. 160.) The bill of exceptions in this case contains no specifications of error whatever. The specification of error set forth above is found in the brief of the appellant. This is insufficient under the statute. Before this court can consider the sufficiency of the evidence to support the findings and judgment, the appellant must specify the particulars in which it is alleged the evidence is insufficient, and such specification must be embodied in the bill of exceptions. This is only fair to the trial court, for the reason that if the losing party points out to the trial court the particulars in which he claims the evidence is insufficient to support the findings and judgment, an opportunity is thereby given the trial court to alter his decision or modify it to conform to the facts as they are alleged and proven. In this case, therefore, the court cannot consider the question as to whether or not the evidence is sufficient to support the findings and judgment of the court.

In the specification above set forth, the appellant alleges that the findings are insufficient to support the judgment, in that they do not respond to the issues, and that no findings have been made of the most material issues in the case as presented by the pleadings.

It is alleged in the complaint that the plaintiffs were partners under the firm name and style of Later Bros.; that on the 15th day of July, 1902, the plaintiffs entered into a contract with one George E. Hill, Sr., which was afterward performed by the respective parties, by which the plaintiffs were to perform services for Hill and to receive as a part of the consideration the property in controversy in this case being lots 5 and 6 in block 2 of the town of Rigby, valued at $ 675, and were also to receive from said Hill under said contract $ 5 worth of water stock in one company, and $ 7.50 worth of water stock in another company; that thereafter, on the 20th day of July, before any transfer of said property had been made, the plaintiffs made a sale of the property to one Frederick R. Hays for the sum of $ 675, and that Hays, in order to secure a part of the purchase price, was compelled to make a loan of $ 400, and in order to secure the payment of said sum of money, asked the plaintiffs for their consent to use the premises as security. The plaintiffs gave their consent with the understanding that the amount borrowed should be turned over to them; that an agreement was then made between Hays and the defendant, which was acquiesced in by the plaintiffs, by which the...