Schwartz v. Stock

• Decision Date: 17 June 1901
• Docket Number: 1,592.
• Citation: 65 P. 351,26 Nev. 128
• Parties: SCHWARTZ v. STOCK.
• Court: Nevada Supreme Court

65 P. 351

SCHWARTZ v. STOCK.

26 Nev. 128

1, 592.

Supreme Court of Nevada

June 17, 1901

Appeal from district court, Humboldt county; G. F. Talbot, Judge.

Action by R. H. Schwartz, as surviving partner of the firm of Stock & Schwartz, against Wilhelmina Stock, as executrix of the estate of William Stock, deceased. From a judgment in favor of the defendant, plaintiff appeals. Affirmed.

H Warren and N. Soderberg, for appellant.

A. E Cheney and F. X. Murphy, for respondent.

MASSEY C.J.

This action was instituted by the appellant on the 15th day of May, 1899, to recover the possession of 5,000 head of sheep of the value of $15,000. He bases his right to recover as the surviving partner of the firm of Stock & Schwartz, of which firm the testator, William Stock, died on the 25th day of November, 1898. The appellant alleges in his complaint, among other matters, that he and the said decedent, on the -- day of June, 1890, entered into an agreement of co-partnership to engage in, and under said agreement did engage in, the business of buying, selling, and raising sheep under the firm name of Stock & Schwartz, and were so engaged at the time of the death of said Stock; that at the time of the death of said Stock he and appellant were the owners in co-partnership of the sheep in controversy; that the respondent, in 1899, wrongfully took, and ever since unlawfully withholds and detains, the said property from the appellant. The answer denies the partnership and all other material averments of the complaint. It affirmatively shows that Wilhelmina Stock was, at the time of his death, the sole and exclusive owner of the property in controversy, and that she, as executrix, was, from the time of her appointment, the owner, and entitled to the exclusive possession, of the property. She further denied, by plea, that the appellant had any right, title, or interest in or to the property in controversy as an individual surviving partner, or in any capacity whatever. Upon the trial, judgment was for the respondent. The appeal is taken from the judgment and the order denying the motion for a new trial.

It is claimed by the appellant that the court erred in refusing to make findings of fact, and in refusing to make findings of fact as requested by him. It appears from the record that after judgment the appellant requested certain specific findings upon the issues made by the pleadings, which request was refused, and an exception taken to the action of the court in so ruling. It does not appear from the record why this request was refused, neither does it appear from the exception taken or otherwise how or in what manner the appellant was injured by this action of the court. By section 182 of the civil practice act (Comp. Laws, § 3277) it is provided that, upon the trial of every issue of fact by the court when sitting without a jury, its decision shall be rendered in writing by the court or judge who tried the cause, and filed with the clerk within 10 days after the trial. In rendering such decision the court or judge shall briefly state the facts found and the conclusions of law reached, and within a specified time the attorney for the prevailing party shall draw complete findings of fact and conclusions of law, and present them to the judge for his signature, and judgment shall be entered in accordance therewith.

Whether or not failure to comply with the requirements of this section would invalidate the judgment is not before us in this case. The record does not affirmatively show that the court either failed or refused to make the findings of fact required by the section. This court will not indulge in presumptions against the regularity of the proceedings of the trial court. It has repeatedly held that all presumptions favor the regularity of the proceedings of that court, and that where error is alleged it must be affirmatively shown by the record before this court will reverse an order or judgment of the lower court. Champion v. Sessions, 2 Nev. 271; Nosler v. Haynes, Id. 53; Lady Bryan Gold & Silver Min. Co. v. Lady Bryan Min. Co., 4 Nev. 414; Mitchell v. Bromberger, 2 Nev. 345, 90 Am. Dec. 550; Allison v. Hagan, 12 Nev. 38; Nesbitt v. Chisholm, 16 Nev. 39; Leete v. Sutherland, 20 Nev. 71, 15 P. 472.

The fact that the court refused to find as requested does not show that the court did not find at all. The findings of the court are no part of the judgment roll (Comp. Laws, § 3300), and can only be presented, as repeatedly held, on appeal, by the statement. The fact that there are no findings in the record does not raise a presumption that no findings were made, there being no showing otherwise by the record.

An unanswerable reason exists which justified the trial court in refusing to make the findings of fact after judgment, as requested by the appellant. The section of the practice act above quoted does not authorize any such practice, and we have been unable to find any other provision which does. If the court did not make the findings required by the section quoted, or had made defective findings, the appellant had ample remedy, under the requirements of another section, to correct the action of the court in the premises, and, in case of refusal to make the correction, the matter could have been, by following the plain directions of the statute, presented to us for review. Section 2 of an act to regulate appeals in the courts of justice in this state (Comp. Laws,§ 3858) expressly prescribes the method of presenting such matters to the appellate court. It provides that, in cases tried by the court without a jury, no judgment shall be reversed for want of findings or for a defective finding of fact, unless exceptions be made in the court below to the finding or to the want of finding, and, in case of defective finding, the particular defects shall be particularly and specifically designated; and, upon failure of the court below to remedy the alleged error, the party moving shall be entitled to his exceptions, and the same shall be settled by the judge as in other cases. It further prescribed the time within which such exceptions shall be filed. The record does not show that there was a want of finding or defective finding; neither does it show that any of the steps required by the statute were taken to correct any want of findings or defective findings, or that any exception or other action was taken in the matter further than is indicated above. This matter has been before this court, considered, and determined, and, under the cases presented and decided, we must hold that the appellant's claim is without merit. McClusky v. Gerhauser, 2 Nev. 52, 90 Am. Dec. 512; Whitmore v. Shiverick, 3 Nev. 312; State v. Manhattan Silver Min. Co., 4 Nev. 336; Warren v. Quill, 9 Nev. 263; Welland v. Williams, 21 Nev. 230, 29 P. 403.

It appears that, after the testimony had been taken by the district court, Judge Talbot presiding, at Winnemucca, it was stipulated by counsel, as a matter of convenience, that the oral argument should be heard at Reno, Washoe county, Nev.; that, pursuant to such agreement, argument was had at the court room of the district court for that county on the 16th and 17th days of January, 1900. During the argument, or at least during a part of the argument, by the courtesy and upon the invitation of Judge Talbot. Judge Curler sat with Judge Talbot, and was consulted by him regarding the case. No objection was made or interposed at the time to this action. Subsequently this fact was presented on motion for a new trial by the affidavit of counsel, and the refusal of the court to grant a new trial because of this alleged misconduct of Judge Talbot or Judge Curler, the record not distinctly showing which of the judges was guilty of the misconduct, is assigned as error. The record shows that the judgment was rendered by the court, Judge Talbot presiding, in Winnemucca, in the following March. It is hardly necessary to discuss this matter. The rule relied upon and the authorities cited have no application whatever to the facts of this record. The text of 17 Am. & Eng. Enc. Law (2d Ed.) p. 717, cited, no doubt states a correct rule of law. A judge has no power to delegate his authority to act. It does not appear that the judge in this action delegated his power, or attempted to delegate his power, to any person. He acted in the premises. The cases cited are in harmony with the text. In Van Slyke v. Insurance Co., 39 Wis. 390, 20 Am. Rep. 50, it was held that on an appeal from a judgment signed by the clerk, where the record shows that on the trial in the court below the judge of that court left the bench, and that his place was assumed by another person, a member of the bar of the court, but not a judge, who tried the cause, and upon whose consideration the judgment was rendered, such judgment was void. In Britton v. Fox, 39 Ind. 371, it was held that a judge could not, because he was "weary," orally authorize an attorney to receive a verdict during his absence. The other cases cited are to the same effect, and require no further consideration.

During the progress of the trial the appellant was sworn, and offered himself as a witness to testify in support of the issues made in his behalf. The facts to be proven by the testimony of the appellant are set out in the record. He offered to show by his own testimony that he kept a set of books, consisting of a daybook of original entry, a journal and a ledger, in which all transactions related to the milling, merchandising, and sheep business were recorded at the time they occurred; that these books were true and correct, and contained a partnership account between the witness and William Stock, deceased, showing all the transactions in connection with a certain ranch and the sheep in...