People v. Forbes

51 Cal. 628

Opinion

By the Court:

First. The answer of the defendant set up certain affirmative defenses to the action, but did not purport to deny any allegation contained in the complaint. The only supposed finding of facts is contained in the decree, where it is said by way of mere recital as follows: “And it further appearing that said complaint was duly verified, the court finds all the facts as stated in said complaint.” -Now in view of the circumstance that the defense did not rest either in whole or in part upon a denial of the allegations of the complaint, but entirely upon the new matter set up in the answer, a finding of “all the facts as stated in the complaint ” was not a disposition of the issues of fact involved in the case.

Second. We held here.(in Mulcahy v. Glazier, ante, p. 626), that if the record were entirely silent upon the question as to whether there had been a waiver of the finding of facts, we would presume in aid of the judgment below that such waiver had occurred. But it is clear that in view of the finding here made, and appearing in the record, no such presumption of a waiver of findings can be indulged.

Judgment and order denying a new trial reversed, and cause remanded for a new trial. B-emittitur forthwith.