Typer v. Sooy, 19 Kan. 593

Typer v. Sooy

19 Kan. 593 | Kan. | 1878

The opinion of the court was delivered by

Brewer, J.:

Plaintiff brought her. action in the district court of Barton county, claiming to be joint-owner with defendant of certain property in the city of Great Bend, that the latter held the legal title thereto in trust for her, and asking that he be compelled to convey. The defendant denied generally. The journal entry of findings and judgment reads as follows:

“The court after hearing the testimony of the witnesses, and the arguments of counsel, and being fully advised in the premises, does find as a fact, that the lots in question were by the commissioners set off to E. C. Sooy; and as a conclusion, that the action of the commissioners is conclusive, and cannot be set aside except for fraud, and then only by a direct proceeding instituted for that purpose. It is considered and *599adjudged by the court, that the said defendant, E. C. Sooy, have judgment,” etc.

Now while the record gives the testimony adduced on the trial, and states that a motion for a new trial was overruled, it does not contain such motion, nor state the grounds upon which it was based. Hence we cannot say that the district court erred in overruling it; (Ferguson v. Graves, 12 Kas. 39; Hover v. Cockins, 17 Kas. 518;) nor inquire into any errors alleged to have been committed during the trial, either in the admission or exclusion of testimony, nor into the sufficiency of the testimony to sustain the findings. Ayres v. Crum, 13 Kas. 269; Nesbit v. Hines, 17 Kas. 316; Hover v. Cockins, supra. Upon this counsel for plaintiff invoke the aid of the case of Everett v. Lush, recently decided by this court, [ante, p. 195,) and say, that the fact found by the court does not sustain its conclusion of law, and therefore does not warrant a judgment adversely to the plaintiff; that the court did not find upon all the issues of fact tendered by the pleadings; that if it had done so, the findings which from the testimony it must have made would have compelled a judgment for plaintiff; that the facts that the legal title to said lots was in defendant, and that it had passed to him by the award of the commissioners, were alleged by her in the petition, and that the basis of her claim was the fact that at the time of entering the town-site she was a joint occupant of the lots and a joint owner of the improvements thereon, and that upon these matters the court made no findings. In other words, the court in substance held that her petition did not state facts sufficient to constitute a cause of action; that in this it erred; that the error is apparent, and the exceptions duly preserved. Counsel have in this framed an argument' of great plausibility, but one to which, nevertheless, we are constrained to say we cannot yield our assent. And first, we think they misunderstand the scope of the decision in Everett v. Lusk. There, plaintiff had sued to recover a strip of land in the possession of defendant, and which was along the boundary between the respective tracts of plaintiff and de*600fendant, and belonged wholly to plaintiff, or wholly to defendant, or partly to each, according as the .true boundary line ran. Now the possession being wholly in the defendant, the finding implied that plaintiff was entitled to part of the strip; but because the court was uncertain as to the exact boundary line, (or in other words, uncertain how much of the strip plaintiff was entitled to,) it rendered judgment in favor of defendant for all. This illustration may perhaps make the principle clearer: A. sues B. for $1,000. The court finds that A. is entitled to recover an amount somewhere between $200 and $600, but the exact figures it is unable to give, and therefore renders judgment for defendant. But in the case at bar there is nothing in the finding of fact from which any implication of right in the plaintiff arises. So far as it goes it shows only right in the defendant. Concede that it be, as counsel contend, not conclusive of defendant’s title, and that it is a fact consistent with plaintiff’s rights, yet it does not tend to show any right in plaintiff) and only supports defendant’s title. So that there was clearly no error in rendering a judgment for defendant upon the fact found. But say counsel, the conclusion of law does not follow from the fact found. Concede that, and it would be simply a wrong reason for a right judgment.

But again, say counsel, there were other facts in issue, upon which proof vras offered, and upon which special findings should have been made. But no special findings are necessary unless requested "by the parties, or one of them, (Major v. Major, 2 Kas. 337; Gen. Stat. p.684, § 290;) and no request for findings appears in the record—no exception to the finding as made, no motion for additional findings, and no application to set aside the judgment for lack of findings on all the matters in issue. Hence it is impossible to say that the court erred in not making further findings. It may have found upon the only matter upon which a special finding was asked. What it might have found upon the other matters concerning which testimony was offered, we cannot tell. There was testimony on both sides. Reduced *601to writing, it may appear to its to preponderate in one direction; when heard from the lips of living witnesses, it may have led the mind of the district court in the other direction. But be that as it may, as was said in the case from 2 Kas. supra, “it is only errors apparent upon the record, that this court can take cognizance of, and those are errors of law. We cannot retry the case upon its merits.” It is useless therefore for us to speculate as to the conclusion to which the testimony, might lead us in those matters. If counsel desired to have them presented for examination here, they should have asked special findings; and the court would then have made such findings, or they could have alleged error in its refusal to find. While it may be, that if the case came before us for review upon the testimony, as under the old practice chancery cases went up on appeal, we should come to a different conclusion as to the rights.of the respective parties, yet, as the record stands, we see no error of which the plaintiff can avail herself, and the judgment will have to be affirmed.

All the Justices concurring.