Quinlan v. Calvert

• Decision Date: 08 July 1904
• Citation: 77 P. 428,31 Mont. 115
• Parties: QUINLAN v. CALVERT
• Court: Montana Supreme Court

77 P. 428

31 Mont. 115

QUINLAN v. CALVERT

Supreme Court of Montana

July 8, 1904

Commissioners' Opinion. Appeal from District Court, Deer Lodge County Welling Napton, Judge.

Action by Harry J. Quinlan against Ed. Calvert. From a judgment for plaintiff, and an order overruling his motion for a new trial, defendant appeals. Reversed.

H. R Whitehill, for appellant.

W. H Trippet and J. H. Duffy, for respondent.

POORMAN C.

In this action plaintiff seeks to obtain a perpetual injunction restraining the defendant from interfering with a ditch constructed by plaintiff for the purpose of draining marsh lands owned by plaintiff. The trial was by the court sitting without a jury, and judgment was entered in accordance with the prayer of the complaint. From this judgment, and from an order overruling defendant's motion for a new trial defendant appeals.

Much of the evidence appearing in the record is indefinite, for the reason that witnesses continually made use of the terms "here" or "there," as though indicating on a map or plat; but the maps put in evidence contain no marks, nor does the evidence contain any statement, by which the particular locations meant by the witnesses in the use of these terms can be ascertained. It sufficiently appears, however, from the pleadings and the evidence, that the plaintiff is the owner of certain lands, a part of which is rendered marshy by water coming to the surface; that this water drains into Dry Modesty creek, the channel of which extends in a northeasterly direction, and has the effect of preventing the water flowing from this marshy land from entering the Dry Modesty channel, except to cross the same in plaintiff's ditch. Many of the material allegations of the complaint are denied by the answer, and defendant sets up an affirmative defense to the effect that the waters from this land formed a running stream which flowed into Dry Modesty channel; that defendant had made location thereof, and was using the same in irrigating lands which it is admitted defendant owned. "At the close of the evidence, and after the same had been argued by counsel, the court stated that it would make findings of fact, and ten days *** were granted by the court to defendant to submit in writing his findings, and which [order] was entered in the minutes of the court. That thereafter, *** before any findings were made by the court, and before judgment was rendered thereon, defendant submitted certain findings in writing on the questions embraced in the pleadings in said action, to the court to find thereon; the said finding so presented to the court [being] as follows." The findings are then set out in full in the record. Some of these findings submitted were on material issues. The court considered these findings submitted, acted thereon, and refused the same, and defendant excepted.

It is claimed by respondent that appellant did not "request findings in writing and have such request entered in the minutes of the court," as required by section 1114 of the Code of Civil Procedure. But it does appear "that the court stated that it would make findings of fact." The defendant had the right, in view of this statement, to presume that the court would make findings on all the material issues, and was thereby relieved from making any request for findings at all. Furthermore, it appears that the court gave the defendant ten days "to submit in writing his findings"--not requests for findings, but the findings themselves, which he desired the court to make. The court was not bound by either the form or the substance of the findings submitted, but the submission of written findings, under such circumstances, had the effect of requesting "findings in writing" on the material facts involved therein, and the findings submitted show the particular point or issue upon which the defendant required a finding. The exception taken therefore complies with section 1115, Code Civ. Proc.

In the record appears this entry:

"Findings and Conclusions of Law by the Court.

"Conclusions of Law.

"The court finds all the material allegations of plaintiff's complaint are true.

"Findings.

"Let judgment be entered for the plaintiff according to the prayer of his complaint."

This is dated and signed by the judge.

The first statement is not a conclusion of law, but a general finding of fact, as the same appears in the allegations of the complaint. The second statement is neither a finding of fact nor a conclusion of law, but an order that judgment be entered for the plaintiff. A general finding of facts in this form was held sufficient in Sutter County v McGriff, 130 Cal. 124, 62 P. 412, but the reasons for the decision are not stated in the opinion. A general finding was also held sufficient in Bitter v. Moaut Lumber, etc., Co. (Colo. App.) 51 P. 519, but in this latter case no answer had been filed, and the facts were not in dispute. In Moore v. Clear Lake Waterworks, 68 Cal. 146, 8 P. 816, a finding to the effect that all the allegations of the complaint are true, and the allegations of the answer are untrue, was held sufficient. This form of finding, however, could not be sustained in this case, for some of the affirmative allegations of the answer were admitted by the replication. If the doctrine of implied findings in force in this state (Gallagher v. Cornelius, 23 Mont. 27, 57 P. 447), can be invoked in aid of the general finding herein, such implied...