Mowry v. Jackson

• Decision Date: 08 September 1959
• Docket Number: No. 18252,18252
• Parties: Lewis deR. MOWRY, Plaintiff in Error, v. Kelly JACKSON, as Successor to J. J. Sylvester, A. M. Ramsey, and A. S. Willburn, constituting the State Board of Land Commissioners, Defendants in Error.
• Court: Colorado Supreme Court

Page 833

343 P.2d 833

140 Colo. 197

Lewis deR. MOWRY, Plaintiff in Error, v. Kelly JACKSON, as Successor to J. J. Sylvester, A. M Ramsey, and A. S. Willburn, constituting the State Board of Land Commissioners, Defendants in Error.

No. 18252.

Supreme Court of Colorado, En Banc.

Sept. 8, 1959.

Collins, Henry & Dolan, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Samuel R. Freeman, Asst. Atty. Gen., for defendants in error.

SUTTON, Justice.

Plaintiff in error was plaintiff in the trial court, and will be referred to as plaintiff. Defendants will be referred to as the Board.

Plaintiff, who alleges he is a qualified verteran resident of Colorado, sought review of the action of the Board in the district court, claiming that the Board violated his rights under the 'Veterans' Act', C.R.S. '53, 112-5, abused its discretion and exceeded its jurisdiction in refusing to sever and make available for sale as a separate parcel a 30-acre tract contained in a 120-acre tract of public land being sold by the Board. He alleges his request to sever was both proper and seasonable. Had the 30-acre tract been sold separately, plaintiff states he intended to bid upon it in the manner prescribed by statute. From an adverse ruling in the district court he brings error.

The undisputed facts indicate that for many years plaintiff had leased the whole 1120-acre tract from the Board. This land had originally been acquired by the state as 'permanent school land'. In September of 1956 plaintiff filed an application with the Board requesting that the whole tract be sold at public sale. Statutory procedures for such a slae were complied with, notice was published and the proper fees paid by plaintiff. On the day of sale, plaintiff filed an application with the Board to have the designated 30-acre tract severed and offered for separate sale in the manner prescribed by statute. The Board refused to honor the application, and proceeded with the sale of the whole 120-acre unit.

Plaintiff's grounds for reversal can be summarized as:

1. The trial court failed to make any findings of fact, thus its judgment was erroneous, and should be vacated.

2. The Board failed to follow the Veterans' Act, after timely application to apply it, thus exceeded its jurisdiction and abused its discretion.

It is a basic concept of American jurisprudence that before a suit is to be brought to trial the issues of law and of fact must first be formulated. Historically this has been a function of the pleadings. In recent years discovery procedures have supplemented the traditional pleading techniques, and, to a large extent, have simplified and replaced them.

Nevertheless it is axiomatic that issues of law and of fact must be presented to the tial court for its initial determination. It is then the function of an appellate court to review for error the trial court's rulings on these issues, either on its interpretation of the law, if the issue is one of law, or on its findings of fact, to determine whether such findings are either supported by substantial evidence or are against the manifest weight of the evidence. Without a proper presentation of these matters in the appellate court it can no more serve its function than the trial court can in the absence of proper pleadings which bring the case into proper focus.

The findings of the trial court, with which we are concerned here, are three brief paragraphs in the record which read:

'Let the record show that in Case B-14623, Lewis deR. Mowry, plaintiff, v. Kelly Jackson, et al., the Court has been fully advised and the record discloses the facts as elicited from this witness stand, so there will be no definite findings of fact because they are in the record.

'Let the record show that it is based on these facts, the decision and judgment of this Court, that the citation to show cause order is quashed and the complaint is dismissed, each side to pay their own costs.

'In the event a motion for new trial were filed, the same would be dispensed with, and counsel has the statutory time in which to secure a Reporter's Transcript.' R.C.P.Colo. Rule 52(a) states:

'In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts and state its conclusions of law thereon and direct the entry of the appropriate judgment; * * *. Requests for findings are not necessary for purposes of review. * * * If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under rules 12 or 56 or any other motion except as provided in rule 41(b).'

Rule 52(a) uses the mandatory words 'the court shall find the facts'. In Massachusetts Bonding & Ins. Co. v. Central Finance Corp., 1951, 124 Colo. 379, 237 P.2d 1079, this phrase was held to have been complied with, where there were no disputed facts, when the trial court made oral findings of fact. There the action of the trial court was approved when it 'made oral findings to the effect that the issues joined were in favor of plaintiff'. That decision was followed by Dunbar v. County court, 1955, 131 Colo. 483, 485, 283 P.2d 182, 183, where the trial court had made oral findings of fact and conclusions of law and it was insisted that it must enter written findings of fact and conclusions of law when so requested. It was again stated that written findings are not required, this court adding: 'It is desirable practice--if written findings are thought to be necessary in any case--that the party feeling the need thereof shall make written request for such findings and file same with the trial court.'

In Dunbar it does not appear whether there were disputed facts before the court, but that distinction is not the determining factor. It is the Rule itself which leaves the matter in the sound discretion of the trial court as to whether the findings shall be written or oral. But that discretion does not mean that no findings of fact need be made. The court has a duty to make one or the other, and if made orally to see that his statement thereon is transcribed in full. In either event such findings must be so explicit as to give the appellate court a clear understanding of the basis of the trial court's decision and to enable it to determine the ground on which it reached its decision. In Maher v. Hendrickson, 7 Cir., 1951, 188 F.2d 700, 702, the court said:

'The ultimate test as to the propriety of findings is whether they are sufficiently comprehensive to provide a basis for decision and supported by the evidence.'

We take this opportunity to point out that usually the type of findings approved by this court in the Massachusetts Bonding case would not be considered adequate compliance with the rule. And, we further point out, so that the dicta contained in the Dunbar c...