McCornick v. Friedman

• Decision Date: 04 June 1901
• Citation: 65 P. 440,7 Idaho 686
• Parties: MCCORNICK v. FRIEDMAN
• Court: Idaho Supreme Court

65 P. 440

7 Idaho 686

MCCORNICK v. FRIEDMAN

Supreme Court of Idaho

June 4, 1901

JUDGMENT - COLLATERAL ATTACK - FINDINGS - PRESUMPTIONS.-Where a judgment is attacked collaterally upon the ground that no findings of fact were made, signed and filed by the judge the validity of such judgment is to be determined from the judgment-roll, and if it appears therefrom that the court rendering it is a court of general jurisdiction, and had jurisdiction of the parties, and subject matter of the action, the law presumes that findings of fact were in their absence waived, unless the judgment-roll affirmatively shows that such findings were not waived.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Reversed and remanded.

P. M Bruner and Frank Pierce, for Appellant.

When the record fails to affirmatively show that findings of fact were not waived the presumption is that they were waived. (Parker v. Beagle, 4 Idaho 453, 40 P. 61.) The statute permits the waiver of findings. They are not jurisdictional. (Rev. Stats. 1887, sec. 4408; Richardson v. Eureka, 110 Cal. 446, 42 P. 965; Campbell v Coburn, 77 Cal. 36, 18 P. 860; Mulcahy v. Glazier, 51 Cal. 626; People v. Forbes, 51 Cal. 628; Reynolds v. Brumagim; 54 Cal. 254; Glenn v. Arnold, 56 Cal. 631; Weeks v. Mining Co., 73 Cal. 602, 15 P. 302; In re Arguello, 85 Cal. 151, 24 P. 641; Goyhinech v. Goyhinech, 80 Cal. 410, 22 P. 175; 1 Freeman on Judgments, 4th ed., sec. 135; 1 Black on Judgments, sec. 185.) It is unnecessary for the judge to sign the judgment. It is good if the clerk enter the judgment. The judgment entered in the judgment-book is a judicial record. It is an official entry of the proceedings of a court. (Sec. 5973; 2 Freeman on Judgments, 4th ed., sec. 409; 1 Black on Judgments, sec. 109; California Southern R. R. Co. v. Southern P. R. R. Co., 67 Cal. 62, 7 P. 123; Jorgensen v. Griffin, 14 Minn. 464; Fontaine v. Hudson, 93 Mo. 62, 3 Am St. Rep. 515, 5 S.W. 692; 1 Freeman on Judgments, 4th ed., sec. 50e; Clapp v. Hawley, 97 N.Y. 610.) This is a collateral attack on the judgment. Collateral attacks are not allowed. (1 Black on Judgments, secs. 245, 252, 261, and cases cited.)

Lyttleton Price and Texas Angel, for Respondents.

The question of presumption of waiver of findings does not arise here, as it would on appeal from a judgment when there were no findings and the record failed to show they were not waived, as in the cases cited by the appellant, all of which follow Mulcahy v. Glazier, 51 Cal. 626. This is not an appeal from a judgment claiming error for want of findings. Where there are no findings, unless waived in the mode required by the statute, the judgment cannot stand. (Dowd v. Clarke, 51 Cal. 262; Mace v. O'Reilly, 70 Cal. 231, 11 P. 721; Savings etc. Soc. v. Thorne,, 67 Cal. 53, 7 P. 36; Connolly v. Ashworth, 98 Cal. 206, 33 P. 60; Broder v. Conklin, 98 Cal. 362, 33 P. 211.)

QUARLES, C. J. Sullivan, J., concurs. Stockslager, J., did not sit at the hearing and took no part in the decision of this case.

OPINION

QUARLES, C. J.

This is an action in ejectment to recover certain real estate. Upon the trial the plaintiff, who is appellant here, offered in evidence the judgment-roll in an action commenced by the Salt Lake Milling and Elevator Company against S. M. Freidman, one of the defendants in this action, in which action the plaintiff recovered judgment for the sum of $ 1,321.03, with costs taxed at fifty-two dollars and fifty-five cents, December 7, 1893. Upon this judgment an execution was issued on December 5, 1895, and levied upon said property, and after due advertisement the sheriff of Blaine county sold said premises, at which time and place the same were struck off and sold, under said execution sale, to the judgment plaintiff, the Salt Lake Milling and Elevator Company, and certificate of sale duly executed to it by the said sheriff. Afterward said purchaser assigned and transferred its said purchase to the appellant, to whom the sheriff of said county executed a sheriff's deed for the premises in question to the appellant. These facts are set forth in the complaint, and it is also alleged that the value of the use and occupation of said premises from the 26th of January, 1896, to the time the action was commenced, was and is the sum of thirty dollars per month, and plaintiff demands judgment for the possession of said premises and the sum of $ 1,440 for the use and occupation thereof. The answer does not deny the recovery of the said judgment; nor does it deny the issuance of the execution thereunder, nor the sale under such execution, nor the execution of said certificate of sale, nor the purchase by appellant from the purchaser at said sale; nor does it deny the execution of the said deed by the sheriff. The answer does deny that the defendant S. M. Friedman was the owner, and alleged a conveyance of said premises to said defendant Friedman to the defendant Henry M. Cohn, which conveyance is alleged to have been made on December 7, 1893, the date that said judgment was entered and docketed. Defendant further alleges a conveyance from the defendant Henry M. Cohn to the defendant Emil M. Friedman. The answer further alleges: "And the defendants further answer that the plaintiff and his predecessors in interest never acquired any claim upon or interest in or to said premises by virtue of the judgment or execution, certificate of sale, or sheriff's deed, set forth in the complaint, against the said Henry M. Cohn or Emil M. Friedman; and deny that the plaintiff is or ever was entitled to the immediate, or any, possession of said premises, or that he or his grantor has ever been entitled to the use or occupancy, possession, or control of said premises, or any part thereof, or that the plaintiff is entitled to the sum of thirty dollars per month, or any sum whatever, from these defendants, or either of them, for the use or occupancy of said premises; and deny that the said deeds of conveyance to Henry M. Cohn, and from him to the defendant Emil M. Friedman, are or were subsequent to or subject to the alleged lien of said judgment mentioned in plaintiff's complaint, or that the said defendants Cohn or Friedman, or the other defendants, were fully or partially aware of any alleged lien or claim of the plaintiff against said premises; and deny that the defendants have either wrongfully or unlawfully, during all the time mentioned in the complaint or otherwise, held possession of said premises, or wrongfully or unlawfully refused to deliver the same to the plaintiff, but held and possessed the same as the property of Henry M. Cohn and Emil M. Friedman, as they at all times during the times mentioned in the complaint had held and now lawfully hold the same, and claim the lawful right to hold and possess the same as their own estate and property."

It will thus be seen that the rendition, entry, and docketing of said judgment, the issuance of execution thereunder, the sale of the premises in dispute at execution sale, and the execution of sheriff's deed to appellant, were all admitted by the pleadings. The cause came on for trial before the court and a jury. When the plaintiff offered in evidence said judgment-roll, the defendants objected, upon the ground that no findings of fact appeared in said judgment-roll. This objection the court sustained. The plaintiff then offered in evidence the original judgment book of the court, showing the judgment under which said execution issued, to which defendants objected, and which objection the court sustained. The plaintiff then offered in evidence...