Maryott & Mchurron v. Gardner

• Decision Date: 08 January 1897
• Docket Number: 6969
• Citation: 69 N.W. 837,50 Neb. 320
• Parties: MARYOTT & MCHURRON v. LEVI F. GARDNER
• Court: Nebraska Supreme Court

69 N.W. 837

50 Neb. 320

MARYOTT & MCHURRON v. LEVI F. GARDNER

No. 6969

Supreme Court of Nebraska

January 8, 1897

ERROR fro the district court of Thurston county. Tried below before NORRIS, J. Affirmed.

AFFIRMED.

Guy T Graves and Jay & Beck, for plaintiffs in error.

John T Cathers and J. M. Curry, contra.

OPINION

RAGAN C. J.

Maryott & McHurron recovered judgment in the county court of Thurston county against Levi F. Gardner. From this judgment Gardner prosecuted an error proceeding to the district court, where the judgment of the county court was reversed. To reverse the judgment of the district court Maryott & McHurron prosecute a petition in error here.

1. Gardner, in his petition in error filed in the district court, alleged that the judgment of the county court was erroneous for several reasons,--among others, that no finding of fact was made by the county court or a jury on which the judgment of said court was based. We shall assume that the district court reversed the judgment of the county court on this ground and proceed to the consideration of the question whether it erred in so doing. The transcript of the proceedings had in the county court, certified to the district court, contained the following: "1 o'clock P. M. Case called. Plaintiff appeared and waived a jury. Defendant refuses to appear further. Said case was submitted to the court. H. L. Maryott was sworn in behalf of the plaintiff and testified that there is due the plaintiff, and wholly unpaid, the sum of $ 790.47. It is therefore considered by me that the plaintiff have and recover of the defendant the sum of $ 790.47, with interest from July 1, 1893, and costs of suit, taxed at $ 13.40." Section 297 of the Code of Civil Procedure provides: "Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding except generally for the plaintiff or defendant," etc. It will be seen that the county court made no finding in favor of the plaintiffs in whose favor it awarded a judgment; and a judgment that is not based on a finding, either general or special, is erroneous. (Sprick v. Washington County, 3 Neb. 253.) In Ransdell v. Putnam, 15 Neb. 642, 19 N.W. 611, it was held: "When an action at law is tried to a court without a jury, the finding of fact by such court is a substitute for, and stands in lieu of, a verdict of a jury, and need be no more specific than the verdict of a jury upon the same pleadings and evidence." In Foster v. Devinney, 28 Neb. 416, 44 N.W. 479, it was held that a finding of the facts put in issue must be made by the trier thereof in order to sustain a judgment rendered in favor of one of the parties. To the same effect see Rhodes v. Rhodes, 31 Neb. 848.

Counsel for plaintiff in error insist that notwithstanding the failure of the county court to make either a general or special finding, its judgment was not void. We entirely agree with that contention. (McNamara v. Cabon, 21 Neb 589, 33 N.W. 259; Black v. Cabon, 24 Neb. 248, 38 N.W. 779; Coad v. Read, 48 Neb. 40, 66 N.W. 1002.) The judgment of the county court under consideration is not void, but it is erroneous, and therefore voidable in this, a direct proceeding to set it aside. We must not be understood as holding that a judgment that is not based on a finding is void and would not be given...