American Mining Co. v. Trask ( 1915 )

ON REHEARING.

Franklin Pfirman, for Appellants.

A. G. Kerns and W. W. Bixby, for Respondent.

BUDGE, J.

In the above-entitled cause a petition for rehearing was filed. After examining the petition and the authorities cited therein, and re-examining the record in the case, a rehearing was granted. At the April, 1916, Coeur d’Alene term of this court further argument was heard and additional briefs were examined in support of appellants’ contention, as made in their petition for rehearing, that no findings of fact were made upon certain material issues; that such facts were necessary to be found by the trial court; and that the trial court erred in failing to make such findings.

Upon further consideration of the record in this casé, we have reached the conclusion that the trial court inadvertently failed to make findings of fact upon the allegations contained in appellants’ further second, third, fourth, fifth, sixth and seventh defenses to the amended complaint set out in the answer, wherein it is alleged that respondent’s cause of action is barred by certain statutes of limitation therein referred to, and by its laches as therein set out. As it appears from our further examination that appellants were entitled to have findings of fact made upon these particular issues, and as it is not within the province of this court to make such findings, neither are we in a position to determine whether the substantial rights of the parties will be affected until findings are made upon all of the material issues, the decision of this court heretofore entered is suspended and the cause remanded, with directions to the trial court to make findings of fact upon these issues.

Should the trial court, in its judgment, deem it necessary to permit the taking of additional evidence upon thes.e points in order that findings of fact may be made, such additional evidence may be taken and considered in connection with the evidence already taken upon the trial of the cause. After the findings of fact have been made as directed, the trial court is to make conclusions of law and enter its decree in accordance with such findings and those heretofore made. Costs are awarded to appellants.

Sullivan, C. J., concurs.