Breding v. Williams , 33 Or. 391 ( 1898 )

Mr. Justice Wolverton,

after stating the facts, delivered the opinion of the court.

There were no findings made or filed in the court below, and it is urged that the judgment should be reversed for want thereof. Matters of contest of the nature here for consideration are required to be heard and determined by the court without the intervention of a jury, as actions at law, in contradistinction to suits in equity; and it is a prerequisite that the court shall make findings of fact, as this court will not look into the evidence except to ascertain whether there is any to support a given conclusion, nor will it try the case de novo : Hill’s Ann. Laws, § 2547 ; Hughes v. Holman, 23 Or. 481, 483 (32 Pac. 298) ; Hartman v. Young, 17 Or. 150, 155 (2 L. R. A 596, 11 Am. St. Rep. 787, 20 Pac. 17) ; Fenton v. Scott, 17 Or. 190 (11 Am. St. Rep. 801, 20 Pac. 95). We have recently held that it is the duty of the court, when sitting in the trial of a cause without the intervention of a jury, to make findings of fact upon all the material issues presented by the pleadings, failing in which it would be cause for reversal of the judgment entered without them, and that it is not necessary to a presentation of the question here that a previous request should have been made for such findings: Moody v. Richards, 29 Or. 282 (45 Pac. 777); Daly v. Larsen, 29 Or. 535 (46 Pac. 143). Such request is requisite when findings are desired upon some collateral issue which may have arisen pertinent to the cause on trial, but not as to issues directly presented by the pleadings and material to the cause of action or defense : Tatum v. Massie, 29 Or. 140 (44 Pac. 494). Now, there were distinct issues of fact presented by the pleadings in the present contest, material to the cause of action and to the defense interposed thereto ; and, no findings having been made or filed touching any of them, it is apparent that the judgment made and entered has no sufficient basis for its support. The written argument and reasoning of the court in support of the judgment contained in the transcript cannot be treated as its findings of fact and conclusions of law. It follows that the judgment must be reversed, and the cause remanded for such further proceedings as may seem proper, not inconsistent with this opinion; and it is so ordered.

Reversed .