Swift v. Muygridge

8 Cal. 445 | Cal. | 1857

Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring.

This was an action upon an undertaking executed by the defendants, to release property attached in a suit in a Justice’s Court, in which the plaintiff had judgment. The action was tried by the Court, and among its findings of fact there is none as to thp release of the property attached and its delivery to the defendant in the attachment-suit; and this omission is now urged by the appellant as fatal to the judgment. The position is not tenable. The release of the property by the constable, and its surrender tq the defendant in that suit, .are distinctly alleged in the complaint, and admitted in the answer. There can be no necessity of a finding as to a fact admitted by the pleadings. The finding is required only when an allegation of a material fact in the complaint is controverted by the answer, so as to raise an issue. The findings of fact by the Court are like a special verdict of a jury. They must be taken, in connection with the pleadings, to support the judgment.

Judgment affirmed.