Pierce v. Pierce , 16 Cal. App. 375 ( 1911 )

Respondent has called our attention to certain findings of the court below, which, it is claimed, would render a judgment for plaintiff unsupported. Among them is: "That it is not true that the claim of the defendant, Frances P. Pierce, is without any right whatever, or that she has no estate, right, title or interest in or to said land, or any part thereof; but on the contrary, defendant, Frances P. Pierce and plaintiff Ella B. Pierce are the owners of said property as tenants in common, subject to certain liens against the said property, as hereinafter more particularly set forth." We should treat this as the finding of an ultimate fact and not as a mere conclusion. It necessarily follows that it would preclude a judgment that plaintiff is the sole owner of the property. Notwithstanding the finding of certain probative facts shows that the foregoing ultimate fact was found against the evidence, the ultimate fact must prevail since it does not appear that the findings of the probative facts dispose of all the facts involved in the pleadings. (Forsythe v. Los AngelesRy. Co., 149 Cal. 575, [87 P. 24].)

We think, therefore, that our judgment rendered herein should be modified so as to simply reverse the judgment and the order of the court below. It is therefore ordered that the following words be stricken from the opinion filed: "As we view the matter, the judgment on the findings should have been in favor of plaintiff," and also that the following words be stricken from the judgment, to wit: "With directions to enter judgment for plaintiff." The petition for a rehearing is denied.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 7, 1911.