Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
COUNSEL:
The findings do not respond to all the issues, the issues in the second and third counts not having been decided or even referred to in the findings. It is the duty of the trial court to find upon all the material issues made in the pleadings. (Traverso v. Tate , 82 Cal. 170; Campbell v. Buckman , 49 Cal. 362; Golson v. Dunlap , 73 Cal. 161; Speegle v. Leese , 51 Cal. 415; Leviston v. Ryan , 75 Cal. 293.)
Daniel Titus, for Appellant.
Pillsbury & Blanding, for Respondent.
No judgment can be reversed for the failure of the court to find upon particular issues, when the failure does not affect the substantial rights of the parties. (Code Civ. Proc., sec. 475; McCourtney v. Fortune , 57 Cal. 617, 619; Belcher Con. G. M. Co. v. Deferrari , 62 Cal. 160, 162; Murphy v. Bennett , 68 Cal. 528, 530.) Failure to find upon a particular issue is not ground for reversing a judgment, when the same judgment would be rendered on a finding upon all the issues, as is required upon the facts found. (Johnson v. Perry , 53 Cal. 351, 354; Robinson v. P. & S. V. R. R. Co ., 65 Cal. 263, 266; Gates v. McLean , 70 Cal. 42, 46.) So when the facts found sustain the judgment, it is unnecessary for the court to go further and find upon other issues. (Robarts v. Haley , 65 Cal. 397, 402; Malone v. County of Del Norte , 77 Cal. 217, 218.)
JUDGES: Works, J. Fox, J., and Paterson, J., concurred.
OPINION
WORKS, Judge
The complaint in this case contains three counts, alleging three separate and distinct causes of action. The material facts in each count were put in issue by the answer. The court below found on all of the issues, under one count, in favor of the plaintiff, and rendered judgment in his favor as prayed for in said count. No findings were made on the issues presented by the other two counts of the complaint. The only point made on this appeal is, that the court below failed to find on all of the material issues presented by the pleadings, and therefore the cause should be reversed.
In other words, the appellant asks us to reverse a judgment which is fully sustained by the findings, because issues which were material in determining another and different cause of action were not found upon. This, we think, we cannot do. All of the issues necessary to sustain the judgment rendered were found upon. Therefore, the fact that entirely separate and distinct issues, which might have been the basis of another and different judgment than the one appealed from, and which, if found upon, could not have affected the judgment actually rendered, were not covered by the findings, cannot justify a reversal of the judgment before us. Every fact material to the judgment appealed from was found, and the judgment must necessarily be affirmed. (Robarts v. Haley , 65 Cal. 397, 402.) The failure to find on the other issues was not prejudicial to the appellant, and for that reason is not cause for reversal. (Murphy v. Bennett , 68 Cal. 528; Belcher Con. G. Mining Co. v. Deferrari , 62 Cal. 162; McCourtney v. Fortune , 57 Cal. 617.)
It is contended by the appellant that he was entitled to a finding upon the other causes of action, because such findings were necessary to shield him from another suit for the same causes of action. But we do not understand that a second suit can be maintained upon those causes of action because findings were not made thereon. Each of the causes of action alleged was put in issue, and the presumption is that they were litigated, and if the judgment rendered did not cover these causes of action, and did cover the other one alleged, it must be presumed against the plaintiff that he was found and adjudged to be entitled to nothing more than was given him by the judgment rendered in his favor. In other words, the judgment [24 P. 942] in his favor on a part of the issue, if he were to bring a second action, would be taken as a finding and judgment against him on the other issues. Of course the presumption that all of the issues were litigated is not a conclusive presumption where a second action is brought. It may be shown that, as a matter of fact, they were not litigated. But if this were so, there would be no injustice to the appellant in presenting them the second time for adjudication. So, taking either view of it, he was not harmed by a failure to find upon the issues not affecting the judgment appealed from.
Judgment and order affirmed.