Opinion
Department One
Hearing in Bank denied.
Appeal from a judgment of the Superior Court of the city and county of San Francisco.
COUNSEL:
E. S. Lippitt, for Appellant.
Theodore Bradley, for Respondent.
JUDGES: Gibson, C. Hayne, C., and Foote, C., concurred.
OPINION
GIBSON, Judge
Action to recover compensation for services as nurses, rendered to defendant by plaintiff and two other persons, which other persons respectively assigned their demands therefor to the plaintiff.
The case was tried before the court without a jury, and on the twelfth day of October, 1885, judgment in favor of plaintiff, as prayed for in her complaint, was announced by the court and was entered on the fourteenth day of the same month; from this judgment the defendant appeals.
Defendant urges as the sole reason for the reversal of the judgment that the instrument set forth in the transcript and denominated "findings," and bearing date of November 11, 1885, and which date is appended under the signature of the judge, and no indorsement of filing appearing anywhere thereon, contains the only findings of fact and conclusions of law that were filed in the case, and the judgment having been entered prior to the filing of findings of fact and conclusions of law, the same not having been waived, is unsupported by findings, and consequently erroneous, and that the filing of the findings bearing date of November 11, 1885, as aforesaid, did not and could not correct the error.
To sustain this position, defendant assumes that the date on the face of the so-called findings under the signature of the judge and the situation of the paper in the transcript immediately after the judgment, no other findings appearing in the judgment roll, conclusively shows that such paper must have been filed after the judgment. This assumption, as will appear from what follows, is based on an unstable foundation.
There is no bill of exceptions in the record, -- nothing by which it can be determined whether findings were not waived, or whether the so-called findings in the record were filed before or after the judgment was entered, unless the mere date on the so-called findings can be taken as prima facie evidence of the time the findings were signed, on the theory that the signing or authentication of findings should precede the filing, and could not have been filed prior to such date, which is twenty-eight days after the entry of the judgment. The only thing in the record showing that the paper referred to as findings was ever filed is the certificate of the clerk to the transcript, reciting that all the papers in the transcript are correct copies of the originals on file in his office.
In Mulcahy v. Glazier , 51 Cal. 626, the court said: "It is a well-settled rule that upon appeal taken error is not to be presumed, but must be affirmatively shown. Where, therefore, as here, a cause is tried by the court without a jury, and the appeal is taken upon the judgment roll, the mere non-appearance of findings of fact in the roll does not necessarily establish that error was committed. The statute, when its several provisions are considered together, does not absolutely or unconditionally require that findings of fact shall be filed, but only that they must be filed, unless waived in some one or more of the three methods therein mentioned. Under the rule of presumption referred to, we cannot presume that no such waiver occurred; the necessary intendment, in support of the judgment, is the other way. A party, therefore, who comes here to say that the court below committed an error in failing to find the facts, must, by bill of exceptions or some other similar and appropriate method, make it affirmatively appear by the record that no waiver of findings had in fact occurred in the court below, otherwise the intendment here must go to support, and not to overthrow, the judgment rendered there." (Smith v. Lawrence , 53 Cal. 34; Carr v. Cronan , 54 Cal. 600; Reynolds v. Brumagim , 54 Cal. 254.)
Measured by the foregoing rule, the judgment should be affirmed, because if the paper referred to as the findings was not filed until after the entry of the judgment, then it must be presumed, in the absence of a showing to the contrary, that, as the clerk of the trial court was required, by section 670 of the Code [21 P. 971] of Civil Procedure, immediately after entering the judgment to make up the judgment roll, he regularly performed his official duty (Code Civ. Proc., sec. 1963, subd. 15), and made it up within the proper time, including therein all papers then on file which should have gone into it, and the paper referred to as the findings, showing merely, under the signature of the judge thereto, a date subsequent to the time when the judgment roll is presumed to have been completed, need not be regarded as a portion thereof, it then follows that, as no findings appear in the judgment roll, we must presume that they were waived. On the other hand, if the mere date on the paper referred to as the findings, and its situation in the transcript immediately following the judgment, can be disregarded, as we think they can be on the record before us, then the intendment still is in favor of the regularity of the proceedings of the court below, and the findings must be held to have been filed before the judgment was entered. It is therefore evident that upon either aspect of the case the judgment should be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment is affirmed.