Smith v. Cushing

41 Cal. 97 | Cal. | 1871

By the Court, Rhodes, C. J.:

This is an action of ejectment. The defendant appeals from the judgment, and the cause comes before us on the judgment roll. The Court found for the plaintiff, and ordered judgment accordingly. Ho objection was taken to the findings that, in any respect or upon any issue, they were defective. The presumption therefore is, as has rejieatedly been announced (see Henry v. Everts, 30 Cal. 425; James v. Williams, 31 Cal. 211; Sears v. Dixon, 33 Cal. 326; Emmal v. Webb, 36 Cal. 197), that the Court found all the facts in issue for the plaintiff, unless the contrary appears from the findings themselves.

When the complaint states facts sufficient to entitle the plaintiff to a recovery, and the Court orders judgment for' the plaintiff’, whether any findings are filed or not, and if filed, whether or not they cover all the issues tendered in the action, the defendant cannot maintain the position that the facts, as found, do not sustain the judgment, unless he can show that such facts, or some of them, are opposed to, or inconsistent with, the judgment.' This brings up the only question which is necessary to be considered on this appeal.

The defendants contend, that the findings show an abandonment of the premises by the plaintiff, and reliance is placed upon the eighth finding, which is as follows: “ That subsequently to said auction sale, neither the plaintiff, nor his grantor, had inclosed the subdivisions or lots described in the complaint as cultivated or improved, or put the same to any actual use, except to hold the same as town or city lots.” The Court had already found the possession of the plaintiff’s grantor, beginning in 1851, and extending to the auction sale in 1861, when the plaintiff purchased. The eighth finding" does not find the ultimate fact of abandonment; nor does it find all the probative facts, necessary to constitute that ultimate fact. The probative facts there stated, were competent evidence in support of the issue of abandonment, but were not sufficient, of themselves, to sustain that issue. It is not found among those probative facts, that the plaintiff left the premises vacant without the intention of reclaiming the possession, nor that he intended to leave the premises open, for the occupation of any one who might choose to enter. The essential elements of abandonment have so frequently been mentioned by this Court, and abandonment has so often been defined, that it is unnecessary at this time to renew the discussion. There is nothing in that finding, as it now stands, which is repugnant to the judgment.

J udgment affirmed.

. Mr. Justice Sprague did not express an opinion.