84 Cal. 272 | Cal. | 1890
Hawes obtained a judgment against Clark, based upon two promissory notes. From that judgment, and an 'order denying a new trial, the defendant appeals.
It is next urged in behalf of the appellant that the court erred in refusing to grant a jury trial, as there was mo legal waiver of such trial. The facts surrounding the transaction seem to be that the cause was peremptorily set for trial on the 16th of April,. 1888, in a certain department of the superior court for the city and county of San Francisco. The defendant’s counsel was desirous of having it transferred to another department of that court, so as to s'ecure a delay in the trial. The plaintiff’s counsel acceded to this, if the other side would waive a trial by jury. The matter was agreed to upon that basis, and counsel appeared in open court and waived a jury, the cause being also set for trial on the 3d of May, 1888.
The waiver was not entered in the minutes in waiting, and when the cause came on for trial on the 14th of the same month, the counsel for defendant asked for a continuance, which, as we have seen, was refused. He then demanded a jury trial. The court, after full examination of the attorneys and the clerk, became satisfied, and properly so, that the defendant’s counsel had made the stipulation above adverted to, and had appeared in open court and waived a jury trial. Thereupon it refused a jury trial, and ordered the clerk to enter the waiver on the minutes nunc pro tune as of the date when the same had actually been made.
By a supplemental brief he now claims that the court made no finding upon certain affirmative defenses set up in his answer at folios 14 and 29. The record contains nothing to show that any evidence whatever was introduced on any such issues. The findings as they stand are amply sufficient to support the judgment, and contain nothing “inconsistent with it.” Therefore, the failure to find upon an issue the finding upon which “would merely have the effect of invalidating a judgment fully supported by the findings made will not be held ground for reversal unless it is shown by statement or bill of exceptions that evidence was submitted in relation to such issue.” (Himmelmann v. Henry, ante, p. 104.)
We therefore advise that the judgment and order be affirmed.
Belcher, C. C., and Hayne, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment and order are affirmed.
Hearing in Bank denied.