Squier v. Lowenberg , 1 Idaho 785 ( 1880 )

Prickett, J.,

delivered tbe opinion;

Morgan, G. J., and Buok, J., concurring.

Tbe cause was tried by tbe district court without a jury, and judgment was rendered in favor of tbe defendants for their costs. Tbe record brought to this court consists of the judgment-roll, in which there is no finding of fact, and tbe appellant seeks to reverse tbe judgment on tbat ground, and urges tbe decision in tbe case of Estell v. Chenery, 3 Cal. 467, and others of like import, in support of bis position. When those decisions were rendered by tbe supreme court of California, tbe statutes of that state required, without exception, in all cases tried by tbe court without a jury, tbat findings of fact should be filed. Our statute, section 188 of tbe civil practice act, provides tbat “findings of fact may be waived by tbe several parties to an issue of fact: I. By failing to appear at tbe trial. 2. By consent, in writing, filed with tbe clerk. 3. By oral consent, entered in tbe minutes.”

This statute, as will be seen, does not absolutely or unconditionally require tbat findings of fact shall be filed in all cases, but only tbat they must be filed unless waived in. one of the methods therein mentioned. It is a familiar rule that upon an appeal taken, error is not to be presumed, but must affirmatively appear from the record. Where, therefore, as in this case, a cause is tried by the court without a jury, and the appeal is taken upon the judgment-roll alone, the absence of findings of fact from the roll does not establish that error was committed. Under the rule referred to, we can not presume that the findings were not waived; the necessary intendment in support of tlie judgment is the other way. We must presume that they were waived under the statute. A party, therefore, • who comes to this court to allege that the court below committed error in rendering judgment without finding the facts, must, by bill of exceptions, make it affirmatively appear by the record, that he did not waive findings in the court below, otherwise the presumption here must go to support, and not to overthrow, the judgment rendered there.

The judgment is affirmed.