Tubbs v. Ghirardelli

45 Cal. 231

• Court: California Supreme Court
• Decided: July 1, 1873
• Docket: No. 3,543
• Status: Published

Opinion

By the Court:

The judgment below for the plaintiff raises an implication of facts proven in support of it. It must be presumed that the defendant was shown to be in possession of the premises at the commencement of the action. Though actual findings, or what are claimed to be such, appear in the record and be of themselves insufficient to support the judgment rendered, other findings will also be implied here in favor of 'the respondent, and this implication will embrace every fact involved in the issue not expressly found in favor of the appellant, or irreconcilable with some express finding appearing in the record.

This is an action of ejectment in which the so-called findings are as follows:

“I find that the plaintiff has proven a right of entry to the land in controversy in this action; that the defendant, Ghirardelli, at the commencement of the action, claimed to be in possession of it, and exercised acts of ownership over it, no one being in the actual occupation of it; that he made this claim and exercised these acts without right or title in himself and adversely to the plaintiff*; therefore the plaintiff is entitled to judgment- for the possession of the land and costs.” '

The appellant claims, and we think correctly, that it is not expressly found that he was in possession at the time the action was brought. But under the rule referred to, although . the defendant was expressly found not to have been in actual occupation of the premises, we must presume that he was found to have had such possession of them as would support an action of ejectment against him.

Judgment affirmed.