152 N.W. 106 | S.D. | 1915
Plaintiff pleaded, as four separate causes of action, in substance as follows: (1) That .he was the owner of
Trial was had to the court without a jury. Defendant proposed certain findings which were refused by the court. These proposed findings covered the ownership of the land, the making of the leases, and the farming of the lands thereunder. Such proposed finding's set forth the fact that numerous item-s of account had been settled from time to time, but that certain items had not been included in such settlements, and that such items represent all unsettled matters between the parties. Then followed proposed findings as> to certain items pleaded by each party, with a recapitulation of the amounts due thereunder, showing the amount due on each item, to whom due, the total of the items due each party, and the balance that, under such findings, would be due defendant. The trial court then made certain purported findings of fact, which, after setting forth the ownership of the lands, the leases, and the occupation and farming of the lands, thereunder, concluded as follows:
“That, during the regular course of said tenancy, numerous items of account arose between plaintiff and defendant, by reason of which the defendant became charged with certain of said items, consisting of the landlord’s share of the crop raised on said leased premises and sold or used' 'by the defendant under the terms of said contract and 'with the consent of the plaintiff, the proceeds from the sale of said bogs, and numerous other items properly charged against the defendant and in favor of the plaintiff in connection with said tenancy; also that during said tenancy the plaintiff became indebted to the defendant by virtue of certain labor and services performed by the said defendant, consisting of breaking done toy defendant upon said leased premises, repair of buildings, digging stone, and numerous other items; that after considering all items so chargeable against the defendant, and all items to which the defendant is entitled to credit,*289 there is still a balance clue and owing by the defendant to the plaintiff on final accounting of all transactions and dealings involved in said tenancy, of the sum of $367.94.”
Judgment was entered for said $367.94 and costs, and the defendant appealed from such judgment.
Three questions are raised by the assignments of error herein: (x) Did the trial court err in failing to make separate findings either as to the several item's of account pleaded or as to the several causes of action? (2) If there was error, was it reversible error? (3) Did the court err in entering judgment without specific finding's as to the items of account?
“Upon the trial of a question of fact by the court, its decision must be given in writing and filed with, the clerk. In giving the’ decision, the facts, found and conclusions must -be separately stated. Laws 1893, c. 72; Comp. Daws, § 5067; section 277, C. C. P. This statute does hot contemplate a recital of merely evidential facts, or the language of the pleadings. It requires a statement of the ultimate facts responsive to the issues arising upon the pleadings — a finding upon each material issue of facts involved in the action. Gull River Lumber Co. v. School Dist. No. 39, 1 N. D. 500, 48 N. W. 427; Anderson v. Alseth, 8 S. D. 240, 66 N. W. 320; Jandt v. South, 2 Dak. 46, 47 N. W. 779. Simple, as the rule seems to be, its application to particular cases frequently causes great perplexity. In many instances it is extremely difficult to determine what are ‘-ultimate facts,’ as distinguished from evidence, on the one hand, and con*290 elusions of law, on the other. Usually, the court’s findings should substantially conform to the allegations of the pleadings, but they, are not always stated with accuracy and precision. The court should determine what material ultimate facts are at issue, and make its findings thereon, guided by the same considerations which would control it in framing special interrogatories for a jury. Statements which would be sufficient ini a special verdict are sufficient when made by the court.”
See McPherson v. Swift, 22 S. D. 174, 116 N. W. 76, 133 Am. St. Rep. 907; Telephone Co. v. City of Mitchell, 22 S. D. 191, 116 N. W. 67; Hyde v. Railway Co., 24 S. D. 386, 123 N. W. 849; Smith v. Cleaver, 25 S. D. 351, 126 N. W. 589.
We think the following from Farmer v. St. Croix Power Co., 117 Wis. 76, 93 N. W. 830, 98 Am. St. Rep. 914, to be peculiarly applicable to the case before us, whether we consider this case as an equity case, as contended by respondent, or one partly in equity and partly at law, as seems to -be claimed by appellant.
“In a trial ini equity they (the parties) are entitled to a decision by the trial court upon each material issue raised by the pleadings, and to such decision also in detail, to at least a reasonable degree, covering the matters not only deemed by the court material to sustain the final judgment, but all those matters as to which there is a reasonable controversy respecting whether they have a material ¡bearing upon the rights of the parties or not. They are also entitled to the decision of the trial judge specifically upon the minor questions of law applicable to the facts found upon which the ultimate conclusion of law must rest. They are entitled to all that from the one who has the opportunity of hearing- the evidence and of seeing the' witnesses before he surrenders his jurisdiction over the case. That privilege is given or declared by statute in mandatory language in these words: ‘The judge shall state in his decision separately: (1) The facts found by him; and (2) his conclusions of law thereon.’ Stats. 1898, § 2863. That means manifestly, something more than a general finding of facts and a general conclusion of law. As to the facts, it means at least a finding in detail of matters essential to be stated in the pleadings to make out the cause of action or defense found1 by the trial court to exist. It means what it says, and nothing short of the specific findings and conclusions com*291 mancled satisfies the full measure of duty according to the standard set by legislative will.”
The statute requiring the trial court to make findings being mandatory, and the court having failed to make such a finding as is contemplated by such statute, it follows that such failure was error.
“Conceding for the sake of argument that the court should have set out the evidentiary items of account and its reasoning relating thereto, yet a failure to do so is not ground for reversal, because it is apparent that even then the judgment would necessarily be against the appellant.”
In support of the above, respondent cites McPherson v. Swift, 22 S. D. 165, 116 N. W. 76, 133 Am. St. Rep. 907, and Naddy v. Dietze, 15 S. D. 26, 86 N. W. 753. The opinion in the first case points out certain circumstances under which the making of proper finding's on only a part of the -issues raised might not be reversible error; and such opinion then points out reasons why, under the facts of that particular case, the failure to make further findings was reversible error. In the second case this court held that proper findings had been made, and then said:
“If the plaintiff' desired findings upon a particular point, or more specific findings, he should have requested them, and their omission without such request is not error.”
There is a marked 'distinction between holding that a party must ask for further findings, or else be held to waive -same, where the court has made proper findings sufficient to support a judgment, and holding that one waives the error of the court in failing to make proper findings when he neglects to ask for such findings, where the court has wholly failed to make any finding, required by law, upon a matter essential to a right of recovery.
Was the error prejudicial? If not, appellant is not entitled to a reversal of the judgment. Section 1, c. 172, Laws 1913; section 1, c. 178, Laws 1913. In Farmer v. St. Croix Power Co., supra, citing numerous former opinions of the same court in support thereof, it was held that “the judgment must be affirmed on appeal, unless it appears probable that the substantial rights of
The judgment is reversed, and the cause remanded to the circuit court, with directions that such court make- findings in accordance with the views herein expressed.