The record-union., 1891-04-01
Filled March 28. 1Sa1.l

II 11E1 hIdItn 70, 1O9l.
Appeal from the Superior Court of
Santa Clara County-Frs. L. Spencer.
Judge.
For appellants, William L. Gill: of
counsel, \. S. kittredge.
For respondent, S. o. Houghton.
DEPARTMENT. ONE.
AMELIA A. WINsLow,
Respondent,
y. +. GoHRANSEN,
Appellant.
The appeal in this case is direct from
the Judgment upon the Judgment roll
alone. The appellant seeks its reversal
upon the ground that the court below did
not make findings upon all the issues in
the case. The complaint is in the ordi-
nary form OF complaint in ejectment.
The answer denies its several allegations,
alleges title III the defendant, pleads the
statute of limitations, and sets up an
equitable defense. The court found only
the facts which were alleged in the COM
plaint, and rendered judgment in favor
Of the plaintiII.
In himmelman VS.. Henry (S4 Cal. I04),
1t was held that "a failure to find upon
some issue q finding upon which would
merely have the effect OF invalidating a
/. Judgment fully supported by the findings
made, viii not be held ground for re-
NersaI, unless it is shown by statement or
bill OF exceptions that evidence was sub
mitted in relation to such ISSUE" ApDeI-
lant seeks to distinguish the present case
from Himmelman VS.. Henry by the fact
that it is recited in the findings herein
that the court proceeded to hear said
cause upon the issues made by the COM
plaint and the answer of the defendant
thereto; and the court having heard the
proofs OF the parties in support of The is
sues last aforesaid and the arguments of
counsel, makes the findings of fact and
conclusions of laW;n and he contends
that this recital is a sufficient compliance
with the rule laid down in Himmelman
VS.. Henry.
If we should concede that this state
lnent in the findings is sufficient to au-
thorize us to assume that evidence was
received upon the issues presented by the
answer, it would not follow that the fail
ure TO make finding upon such issues
was error available TO the defendant
upon this appeal. The opinion OF the
court in Himmelman VS.. Henry. that a
Judgment would not be reversed for fail
ure 10 find upon an issue, unless it was
shown that evidence was submitted in
relation to such issue,'' necessarily inn
piled that the evidence so shown must be
sutliclent TO authorize such a finding as
would "haVe the effect OF inyalidatiucr n
Judgment fully supported by the findings
made" Such finding would not he
authorized II the evidence introduced
was insufficient 10 sustain the allega-
tions presenting the issues, any more
than it would if there We're no evidence
Introduced IN reference thereto. In either
case the finding of the court could only
be against the allegation, and conse-
quentiy would not ''invalidate" the iudg-
ment rendered in accordance with the
other findings; and, inasmuch as the
failure to make such finding would not
affect the substantial rights of the APP
pellant. the Judgment ought not to be re-
NeTSed. &C. G. L. Sec. 415.) The appellant
js not prgjudiced unless the court shall
1ali 10 make such findings in his behalf
As VIII countervail its other findings; and.
as error in the court below is not to be
presumed, but must be shown by him, it
is incumbent on him to produce before
TINS court the evidence that was pre-
Sented to that court IN order that we NAV
determine whether any error was com
mitted in falling to make such findings.
If the omitted findings must have been
adverse TO the appellant, their omission
IS not error sufficient to authorize the re-
YeTsal Of the judgment. Ciutchins VS..
Castle, IS Cal. 1861
The issues upon which the court made
no nndlng IN the present case were issues
rendered by the answer. and 1t was in
cumbent on the defendant to introduce
evidence in their support. There is no
presumption that such evidence was in
Introduce evidence, which unless con-
troverted would sustain his allega-
tons, the court was not required to make
any findings thereon. 1t is not enough
for him TO show merely that evidence
W;ts introduced, but il must also he shown
TINT the evidence which was introduced
was sufficient TO support his allegations.
The recital by the court that il ''heard
the proofs Of the parties in support of the
ISSUES docs not imply that any particu-
lar proof was heard, nor does it have ref
erehce TO proof upon any particular issue.
1t certainly does not imply that the proofs
which ii heard were sufficient to llstssfn
the allegations of the answer. In Him
meiman Us. Henry it was recited in the
findings that ''the court having heard the
allegations and proofs of the respective
parties, finds IS matters Of fact as fol-
lows This recital was not deemed sufIi-
c!ieht IN that case 10 justify the presump-
Ion that any evidence was offered upon
the issues on which no finding was made,
ana we Go not perceive any substantial
distinction between the recital in that
case and in the one before us.
ne Judgment appealed from is
aiILilieo. HARRISON, j.
We concur:
DE HAVEN, J.,
GARoUTTE, J.