Coveny v. Hale
49 Cal. 552
Cal.
1875
Check Treatment
By the Court, McKinstry, J. :

The notice of intention to move for new trial was not filed within thirty days after the “findings” were filed. (Code Civ. Proc. Sec. 659.) The motion for a new trial, therefore, was properly denied.

We cannot inquire whether the findings are justified by the evidence, because the bill of exceptions does not specify the particulars wherein the evidence is insufficient to sustain them. The question here is, not whether the findings support the judgment, but whether the evidence sustains the findings. The findings of fact are sufficient, first, when the ultimate facts on which the judgment immediately depends are found; second, when probative facts are found, and the Court can declare that the ultimate facts necessarily result from the facts which are found. When an exception is to the decision, on the ground of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient (Code Civ. Proc. 648). And the decision referred to in section 648 is the statement of facts found, and conclusions of law therefrom mentioned in section 633 of the same Code.

*556The only language in the bill which can be claimed to constitute a specification is: “The said judgment is contrary to the evidence in this, that the evidence shows that the money for which said note was given was common property.” It is always safer to employ the language used in a statute, but it is not the only objection to the attempted specification, that the word “judgment” is substituted in it for the word “decision.” It is evident that the specification—such as it is—is actually addressed to the general conclusion, and not to the findings of fact, or any of them. There is no finding in the transcript that the money for which the note was given was not common property, or that it was the separate property of the wife.

The Court found a series of facts from which the conclusion seems to have been drawn that the money was separate property, and from which such is the necessary conclusion, as a matter of law. The finding is, therefore, sufficient. The case would be different if there was merely a recital of evidence which would not conclusively establish that it was either common or separate property. The Court having detailed facts in its decision—from which the conclusion that the money was separate property was necessarily drawn—the particular facts found and claimed not to be supported by the evidence should have been specified in the bill of exceptions. The failure to do this was a failure to comply with the 648th section of the Code of Civil Procedure.

Of course, it is only when the conclusion follows as a matter of law (in other words, when the ultimate or issuable fact becomes a conclusion drawn from the lesser fact), that such a finding will be held sufficient. Ordinarily, the ultimate fact must be found by the District Court, and this Court will not assume the province of a jury, or of the trial Court, by deciding here for the first time what facts are established by the evidence.

The objection of the plaintiff to the papers in the matter of the estate of Elizabeth Coveny, deceased, was too broad. Some of the papers were unquestionably admissible.

Judgment and order affirmed.