Churchill v. Baumann

De Haven, J., concurring.

— I concur in the judgment. The finding of the court below that plaintiff participated with defendants in the maintenance of the dam and diversion of the water of which he complains is a defense to the action. I do not, however, concur in so much of the foregoing opinion as holds that evidence tending to prove such defense was properly admitted under the denial that plaintiff sustained damage by reason of the matters alleged in his complaint. I think that such defense should have been specially set out in the answer. But this appeal is upon the judgment roll without any bill of exceptions, and upon this record the presumption is, that the evidence by which this defense was established was received without objection, and that the case was tried by consent of the parties, as if such defense had been specially alleged. This being so, appellant should not be permitted to urge here for the first time that no such issue was made in the court below. (Horton v. Dominguez, 68 Cal. 642.) The court below should have directed an amendment of the answer so as to conform to the proofs, but the judgment ought not to'be reversed because such formal amendment was not made.

I do not understand that the case of Ortegav. Cordero, 88 Cal. 221, is necessarily opposed to these views. In that case the question was, what effect should be-given to a finding which was inconsistent with a fact admitted by the pleadings, and it was in relation to this that the court said that there could be no presumption that the parties consented to treat admitted facts as in issue; that a judgment which was in conflict with a fact admitted upon the record could not be sustained, and that upon such a record there was no presumption that a party waived the benefit of an admitted fact. The question here is different. The finding which is claimed to he outside of the issues does not contradict any fact admitted upon the record, but simply avoids what would otherwise be the effect of matters alleged in the complaint and found by the court to be true. If the plaintiff made no objection to trying such an issue, the court committed no error in admitting the evidence to prove it. If, upon the other hand, such issue was tried, and evidence admitted against the objection of appellant, the fact should have been made to appear by a bill of exceptions. Error cannot be presumed for the purpose of reversing a judgment.

Hearing in Bank denied.

Beatty,^ C. J., dissented from the order denying a hearing in Bank.