28 Kan. 686 | Kan. | 1882
The opinion of the court was delivered by
This was an action brought by.J. W. Ferry against the Atchison, Topeka & Santa Fé railroad company, before a justice of the peace of Chase county, for damages alleged to have been caused through the negligence of the railroad company to a car-load 'of potatoes and
The first assignment of error in this court is, that the court below refused to make special findings, and refused to state ids conclusions of fact found, separately from its conclusions of law. -
It appears from the record in the case that at the trial of the case before the court below, before any evidence was introduced, the defendant, in open court, requested the court to state in writing its conclusions of law, separately from its conclusions of fact. It also appears that defendant again, at the conclusion of the evidence, renewed its request to the court. ,
To which request the court responded, “That it would pass and find upon any findings of fact which the counsel for the defendant might prepare and submit to it, but that it would not take the time from the business of the court to perform the clerical labor of drawing up questions to be answered. Thereupon the counsel for the defendant stated that they would not prepare or submit any findings of fact to the court for it to pass or find upon, but that they demanded of' the court that it should state in writing its conclusions of fact separately from its conclusions of law,' which request the court refused to comply with; and to the refusal of the court to state in writing its conclusions of fact separately from its conclusions of law, the defendant at the time duly excepted;
Did the court below err in refusing the request of the defendant below? This question, we think, must be answered in the affirmative. Section 290 of the code reads as follows:
“Upon the trial of questions of fact by the court, it shall not be necessary for the court to stale its finding, except generally, for the plaintiff or defendant, unless one of the parties request it with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.”
This section provides in substance, that in all cases tried by the court without a jury, if either party requests it, the court shall state in writing its conclusions of fact, separately from its conclusions of law; and there is not the slightest intimation in the section that the party making the request shall prepare for the court, or submit to it, any statements of fact or any propositions of law, with a view to having the, court make findings thereon, or state conclusions with reference thereto. It does not appear however in this case, that the court below desired the defendant to prepare for it, or to submit to it, any questions of law for it to consider; but it was merely questions of fact which the court desired that the counsel should prepare and submit to it. It would often, of course, be very convenient to have the desired or anticipated conclusions of fact prepared for the court and submitted to it; but the statute does not seem to contemplate the necessity for any such thing. Besides, the facts upon which the court is to decide are always presented to the court in writing by the pleadings in the case, and it may generally be presumed that the facts are as well stated in the pleadings as
We think this case has already been substantially decided by this court in other cases: Briggs v. Eggan, 17 Kas. 589, et seq., and cases there cited; Lowry v. Stewart, 5 Kas. 663; McCandliss v. Kelsey, 16 Kas. 557. See also Lee v. Marsh, 19 Mich. 11; Stancell v. Corning, 21 Mich. 242; Howerter v. Kelly, 23 Mich. 337; Hunt v. Patterson, 38 Mich. 95; C. & T. Rld. Co. v. Johnson, 10 Ohio St. 591; Levi v. Daniels, 22 Ohio St. 38.
We think the court below erred in refusing the request of the defendant in this case; and for such error the judgment of the court below will be reversed, and the cause remanded for a new trial.