51 Cal. 628 | Cal. | 1877
First. The answer of the defendant set up certain affirmative defenses to the action, but did not purport to deny any allegation contained in the complaint. The only sup
Second. We held here.(in Mulcahy v. Glazier, ante, p. 626), that if the record were entirely silent upon the question as to whether there had been a waiver of the finding of facts, we would presume in aid of the judgment below that such waiver had occurred. But it is clear that in view of the finding here made, and appearing in the record, no such presumption of a waiver of findings can be indulged.
Judgment and order denying a new trial reversed, and cause remanded for a new trial. B-emittitur forthwith.