93 P. 374 | Idaho | 1908
Tbis ease was before tbis court on a former appeal from a judgment of nonsuit, entered after tbe plaintiffs bad concluded their evidence, and is reported in tbe 12th Idaho, at page 78, 85 Pac. 494. Upon reversal of tbe judgment of nonsuit,"the cause was retried in tbe district court and findings of fact, conclusions of law and a decree entered in said cause, in favor of tbe defendant. From tbis judgment tbe plaintiffs appeal. Tbe appellants assign fifty-six errors, fifty-five of which are errors of law alleged to have occurred during tbe trial of said cause. Specification 56 is as follows: “Tbe findings of fact in tbis case are wholly insufficient to support tbe judgment in that they do not respond to tbe issues in tbis case; that they are not definite nor certain ; that they are contradictory; that they are not supported by tbe evidence; that they are contrary to tbe evidence; and that no findings have been made of tbe most material issues in tbe ease, as presented by tbe pleading.”
A large part of appellants ’ brief is devoted to a discussion of the question as to whether each finding is supported by tbe evidence, and as to whether tbe evidence supports tbe judgment of tbe court. Sec. 4807, Rev. Stat., provides that
These two sections must be read together, and while the former provides that a decision of the court may be reviewed on appeal when the appeal is taken within sixty days from .the rendition of the judgment, the latter section provides that where the exception is to the decision of the court, upon the ground of insufficiency of the evidence to support the judgment and findings, the bill of exceptions must contain the .specifications of the particulars in which the evidence is alleged to be insufficient to sustain the findings or judgment, or it will be disregarded. (Hole v. Van Duser, 11 Ida. 79, 81 Pac. 109; Coglan v. Beard, 67 Cal. 303, 7 Pac. 738; Commercial Bank v. Redfield, 122 Cal. 405, 55 Pac. 160.) The bill of exceptions in this ease contains no specifications of -error whatever. The specification of error set forth above is found in the brief of the appellant. This is insufficient under the statute. Before this court can consider the sufficiency of the evidence to support the findings and judgment, the.appellant must specify the particulars in which it is alleged the evidence is insufficient, and such specification must be embodied in the bill of exceptions. This is only fair to dhe trial court, for the reason that if the losing party points
In the specification above set forth, the appellant alleges that the findings are insufficient to support the judgment, in that they do not respond to the issues, and that no findings have been made of the most material issues in the case as presented by the pleadings.
It is alleged in the complaint that the plaintiffs were partners under the firm name and style of Later Bros.; that on the 15th day of July, 1902, the plaintiffs entered into a contract with one George B. Hill, Sr., which was afterward performed by the respective parties, by which the plaintiffs were to perform services for Hill and to receive as a part of the consideration the property in controversy in this case, being lots 5 and 6 in block 2 of the town of Rigby, valued at $675, and were also to receive from said Hill under said contract $5 worth of water stock in one company, and $7.50 worth of water stock in another company; that thereafter, on the 20th day of July, before any transfer of said property had been made, the plaintiffs made a sale of the property to one Frederick R. Hays for the sum of $675, and that Hays, in order to secure a part of the purchase price, was compelled to make a loan of $400, and in order to secure the payment of said sum of money, asked the plaintiffs for their consent to use the premises as security. The plaintiffs gave their consent with the understanding that the amount borrowed should be turned over to them; that an agreement was then made between Hays and the defendant, which was acquiesced in by the plaintiffs, by which the defendant was to and did loan to said Hays the sum of $400, in consideration that the defendant was to be given a deed of the property as security. The deed was given, and it was agreed verbally and has always been understood and agreed between
The complaint further alleges that thereafter Hays transferred all his right, title and interest to said property to these plaintiffs by a quitclaim deed; that on the 3d day of January, 1905, the plaintiffs tendered in lawful money of the United States, $460, the amount due said defendant on said loan, and demanded of the defendant that she execute and deliver to them a certificate of discharge of said mortgage and satisfy the same on the records of said county, or convey the property to said Hays, and that the defendant neglected and refused to do so and still neglects, although the plaintiff is now, and at all times has been, ready and willing to pay the defendant the sum of $460, the amount due her. In the prayer, the plaintiffs ask that the deed referred to from Hill to the defendant be adjudged a mortgage, and that the plaintiffs be adjudged the legal owners in fee of said premises; that an order be made directing the said defendant to convey the said property to these plaintiffs; that the plaintiffs be given a money judgmént against the
The defendant answered, and for want of information as to the partnership of the plaintiffs denies the same; for want of information, she also denies that plaintiffs entered into the contract with George E. Hill, Sr., as alleged in the complaint, and denies that the plaintiffs were to receive from Hill the real property described in the complaint, and for want of belief denies that the plaintiffs made a sale of said property to Hays in order that he might secure a part of the purchase price by a loan, and denies that it was done with the understanding that the amount borrowed should be turned over to the plaintiffs; denies that Hays procured a loan of $400 from the defendant, or at all. The defendant further denies that an agreement was made at all, between Hays and this defendant, by which the defendant was to or did loan to Hays the sum of $400, or any other sum, and denies that the deed was given or that it was agreed verbally or otherwise, that the deed, though absolute, was to be or was considered as a mortgage or as security for such loan, and denies that Hill made a deed to the defendant as security for said $400, or that said deed was intended to be a mortgage; denies that Hays has any interest in the property or ever did have, and in answer to paragraph 4, the defendant denies the same as follows: “Denies that said or any deed from said Hill to this defendant, and the said agreement between this defendant and the said Hays, and the alleged verbal understanding and agreement between said plaintiffs and this defendant and the said Hays, were all parts of one or the same transaction, that is to say, the conveying or alleged mortgaging of said premises to this defendant as alleged security for the payment of said sum of $400, or any other sum or amount or at all, or interest thereon.”
The defendant then sets up affirmatively that she purchased the property in controversy in this ease from George E. Hill, Sr., and wife, and paid therefor $400, and that they made her an absolute, unconditional warranty deed for the same, and • that afterward she agreed to sell the property to Frederick
This, in substance, is the issue presented by the pleadings in the case. It will thus be seen that the main point of controversy is, as to whether or not the conveyance made to the defendant and her agreement to resell 'the property to Frederick R. Hays, and the verbal understandings and agreements altogether constitute one and the same transaction; that is, the conveying or mortgaging of said premises to secure a loan of $400 and interest.
The court finds, first, the partnership of the plaintiffs as alleged; second, that the plaintiffs did not sell the property to Hays for the sum of $675, or any other sum or amount; third, that Hays did not at any time procure a loan of $400 or any other sum or amount from the defendant, and did not borrow from the defendant the sum of $400 or any sum; fourth, that George E. Hill, Sr., did not at any time sell the property to the plaintiffs; that no sale of said property was ever made to the plaintiffs, and that the defendant did not understand nor agree, nor was it agreed by and between all the parties mentioned, that George E. Hill, Sr., was to make a deed direct to the defendant in order to avoid the cost or inconvenience of conveyances from Hill to the plaintiffs, and from plaintiffs to Hays, and from Hays to the defendant; that the property was not mortgaged by Hays to the defendant as security for the payment of the sum of $400, or for the security of any sum whatever; fifth, that on the 19th day of January, 1903, the defendant unconditionally purchased of George E. Hill, Sr., and wife, for the sum of $400, the property described in the complaint, and in consideration of the payment of said $400, said Hill and wife conveyed said property to the defendant by warranty deed; sixth, that on the 20th day of January, 1903, the defendant agreed conditionally to sell said property to Hays for $400, and that Hays agreed to buy the same; seventh, that at the time the deed was executed and delivered by Hill
Upon these findings, the court enters a decree adjudging the defendant to be the owner absolutely and unconditionally of the property described in the complaint and findings.
This court has decided in a number of cases that when the trial court fails to find on all the material issues, the judgment will be reversed, unless a finding thereon, either for or against the successful party, would not affect the judgment entered. (Tage v. Alberts, 2 Ida. 271, 13 Pac. 19; Carson v. Thews, 2 Ida. 176, 9 Pac. 605; Bowman v. Ayers, 2 Ida. 305, 13 Pac. 346; Wilson v. Wilson, 6 Ida. 597, 57 Pac. 708; Standley v. Flint, 10 Ida. 629, 79 Pac. 815; Wood v. Broderson, 12 Ida. 190, 85 Pac. 490.)
It is equally well settled that the finding of ultimate facts includes the finding of all probative facts necessary to sustain the finding of the ultimate facts (Adams v. Crawford, 116 Cal. 495, 48 Pac. 488); and “Where probative facts are found, and the court can declare that the ultimate facts necessarily result from the facts which are found, the finding is sufficient. ’ ’ (Alhambra Add. Water Co. v. Richardson, 72 Cal. 604, 14 Pac. 379.) Examining the findings in this case in view of these legal principles, it is apparent at first glance that the findings in this case are not responsive to the issues, and that the court has failed to find on the material issue in the case. While the court finds that George E. Hill, Sr., conveyed the property
We are, therefore, clearly of the opinion that the court failed in this ease to find upon the material issues in the case, and that the judgment must be reversed.
The appellant has assigned fifty-five alleged errors of the trial court, in admitting evidence and in refusing to admit •evidence, and in overruling motions to strike out evidence, etc. We have carefully examined each of these questions, and while in some instances the court may have erred in admitting evidence, the errors under the issues of this case were harmless and could not in any way have prejudiced the plaintiffs. Some of the objections to the admission of evidence were general, such as, “I object.” This is not sufficient to secure a review of the ruling of the trial court by this court. If counsel desire to urge in this court that the trial court erred in admitting evidence, or in refusing to strike out evidence, or in refusing to admit evidence, the objection must point out the reason for the objection, and thereby give the trial court an opportunity to pas's upon the question presented to this court. It may occur that the trial court, after counsel have given the reason why an objection to the introduction of evidence is made, will readily see the correctness of the position of counsel, and can correct the alleged error before it is too late, so if counsel desired to present to this court an objection to the admission or rejection of evidence, he should specifically point out the particulars on which the objection is founded.
The judgment, therefore, in this case is reversed, and the lower court is directed to make new findings of fact covering all the material issues in this case, and enter judgment accordingly.
Costs awarded to the appellant.