Covell v. Lee

230 P. 208, 69 Cal. App. 1, 1924 Cal. App. LEXIS 163

• Court: California Court of Appeal
• Decided: September 25, 1924
• Docket: Civ. No. 2907.
• Status: Published

Opinion

FINCH, P. J.

This is an application for an order in the ahove-entitled cause, now on appeal in this court, directing the judge of the trial court to certify “whether said petitioners in said proceeding before said superior court therein waived the making and filing by said superior court of its findings of fact and conclusions of law upon the issues of fact tried in said proceeding.”

Petitioners applied to the tidal court for a writ of mandate requiring respondent to call an election for the determination of the question of the formation of a joint union high school district, to be composed of the following school districts: “Davis Joint, Montgomery Joint, Fairfield and Plainfield.” In such application it is alleged that a petition was theretofore filed with respondent, “signed by a majority of the registered electors in each of said four school districts,” praying for the formation of a joint union high school district. The ■answer denies that the petition “was signed by a majority of the registered electors in each of said school districts.” No other issue was raised by the pleadings.

Section 1728 of the Political Code (as amended by Stats. 1917, p. 712) requires that such a petition be signed by “a majority of the registered 'electors, residing in each” of the school districts sought to be organized into a high school district. The cause was tried and in due time the trial judge signed and caused to be filed a paper, denominated “Decision of Court,” which is in the form of an opinion, except for the last paragraph thereof, which reads as follows:

“It is, therefore, ordered that the petition for an alternative writ of mandate herein be and the same is hereby denied and that the respondent have and recover her costs incurred in this proceeding.”

Petitioners treated the foregoing paper as a judgment and have appealed therefrom. In respondent’s points and authorities in opposition to appellants’ motion it is said: “In their points and authorities appellants cite the Estate of Yorba, 176 Cal. 166 [167 Pac. 854], to support the proposition that the document signed by the trial court constitutes a judgment in the action. With this view we agree because it is apparent that it was intended as such when we read the concluding paragraph of the document. . . . The judgment filed by the trial court contains sufficient findings of fact. ” Since both parties are agreed that such paper constitutes a judgment it will be treated as such without further inquiry. In such paper appears the following:

“It appears from the evidence that thirty out of fifty-four registered electors residing in .said Plainfield school district signed the petition. Three of these petitioners filed ■ written requests with respondent for the withdrawal of their names from the petition. Such requests were directed to the respondent in her official capacity and were presented to her before the petition was presented to or filed with the respondent. In considering the sufficiency of the petition, the respondent eliminated the names of said three petitioners . . . and determined that the petition was signed by but fifty per cent of such electors.”

Treating the foregoing as a finding, it is responsive to the only issue made by the pleadings. Whether such finding is sufficient or is supported by the evidence are questions Avhich do not arise here. It has been held that findings of fact and the judgment based thereon may be included in "the same document. (Locke v. Klunker, 123 Cal. 231, 239 [55 Pac. 993].) Since the court has made findings of fact, no presumption arises that appellants have Avaived findings upon any issue in the case and, hence, no purpose would be served by granting appellants’ application.

The application is denied.

Plummer, J., and Hart, J., concurred.