CHARLES B. POLHEMUS (Survivor of the Firm of Alsop & Co.) v. WILLIAM M. CARPENTER, REUBEN CLARKE, JAMES GEORGE, DAVID SCANNELL (Sheriff of the County of San Francisco and Official Assignee in Insolvency of said James George), and JAMES P. TREADWELL, 42 Cal. 375

By the Court, Crockett, J.: The first question for determination is, whether the defendant’s notice of his intention to move for a new trial was served and filed in time. On the second of January the Court (which tried the cause without a jury) announced its decision, ordering a judgment to be entered for the defendant; and on the fourth of January the defendant was duly served with a notice of this decision. But when the cause was submitted, the defendant, in due form, requested written findings, which request was entered on the minutes.

On the fourteenth of February the Court filed written findings, and within ten days thereafter the defendant filed and served a notice of his intention to move for a new trial. The statement in support of the motion was filed and served on the seventh of March, and within the time granted by the Court for that purpose.

On these facts, the plaintiff insists that the motion for a new trial came too late; that the ten days for serving and filing the notice commenced to run from the fourth of January, when the defendant was notified of the decision, and not from the fourteenth of February, when the written findings were filed.

Section one hundred and eighty of the code requires the Court to file written findings on the request of either party, entered in the minutes at the submission of the cause, and if the Court neglects or refuses to comply with the request, this will be ground of error, on an appeal from judgment, supported by a bill of exceptions or statement on appeal, embodying the necessary facts.

Section one hundred and ninety-five of the code provides that if the cause is tried by the Court without a jury, a party intending to move for a new trial shall file and serve a notice of his intention to do so within ten days after service of a notice of the filing of the findings, if any written findings be filed; and if there be no written findings, then within ten days after receiving a written notice of the decision of the Court.

There is nothing to prevent the Court from filing written findings, even though neither party requests the findings to be in writing; nor is there any provision defining or limiting the time within which written findings shall or may be filed. The question under consideration is not free from grave embarrassments, arising from the vague provisions of these two sections; and particularly from the omission of any limitation as to the time within which written findings shall be filed.

It is quite plain, however, if there be no request for written findings, and none be filed when the decision is announced, the time within which a party intending to move for a new trial must file and serve a notice of his intention to do so will commence to run from the time when he is served with a written notice of the decision. The Court, it is true, may, at some future day, file written findings, but is under no obligations to do so, and non constat, that it ever will.

In such a case, after receiving a notice of the decision, the party intending to move for a new trial would not be allowed to remain inactive for three or six months, speculating on the chance of the filing of written findings by the Court, and if such findings should, perchance, be filed, then proceed with his motion and excuse his delay on the ground that the statute allows him to proceed within ten days after notice of the filing of the written findings.

If the statute should be so construed, the successful party would never know when the litigation was ended, as it would be wholly uncertain whether or not the Court would at any time file written findings. Such a practice, if tolerated, would lead to the greatest delay, vexation, and uncertainty in the administration of justice.

The only proper and reasonable construction of the statute is, that'when written findings are not requested, and none are filed at the time of the decision, the time within which a party intending to move for a new trial shall file and serve his notice, shall be held to commence running from the time of service of a written notice of the decision. If any inconvenience should arise from the practice here indicated, it is the fault of the statute, which, on aiay other construction of it, would lead to still greater embarrassment.

It would, however,-in a great measure, obviate the difficulty if the Court, when it intends to file written findings, would so state when its decision is announced, and cause them to be promptly filed. But it remains to be considered whether a different rule prevails, when written findings were duly requested by the party intending to move for a new trial, and when such findings were in fact filed after the decision was announced, and after due service of a written notice of the decision.

Section one hundred and eighty, as it formerly stood, requires written findings to be filed in all causes tried by the Court without a jury, whether such findings were requested or not; and

section one hundred and ninety-five, as it stood prior to 1861, required a party intending to move for a new trial to serve and file a notice of his intention to do so within two days “ after the trial.” Under these provisions it was held that the “trial” did not terminate until the written findings were filed, and, consequently, that the notice of a motion for a new trial was in time, if served and filed within two days after the findings were filed. The Court had no power to render an oral decision, and the trial, therefore, was not ended until written findings were filed. But in 1866, both these sections were amended; and by

section one hundred and eighty, as amended, the Court is relieved from the necessity of filing written findings, unless requested by one of the parties at the time of the submission to do so. But if such request he duly made and entered in the minutes, the duty of the Court to file written findings is as imperative now as if that

section had not been amended. If the Court refuses or neglects to perform this duty, the injured party may assign this as error on an appeal from the judgment, without a motion for a new trial. The same section, as amended, also provides that if the findings be defective, the injured party may except to them, and if the Court refuses to supply the defects, this also will be ground of error on appeal from the judgment.

Section one hundred and ninety-five, as amended, provides that in causes tried by the Court without a jury, a party intending to move for a new trial shall give notice thereof within ten days after receiving written notice of the filing of the findings, “when written findings are filed by the Court, or of the rendering of the decision of the Court when no findings are filed; provided the decision be rendered in open Court, and, if rendered at vacation, then within ten days after receiving written notice of the filing, thereof.” As we have seen, it is the imperative duty of the Court to file written findings, when requested to do so by either party; and it is a duty which this Court will compel the lower Court to perform, on a proper showing on an appeal from the judgment.

A party requesting written findings is entitled to have them, as a basis of his motion for a new trial, in case the decision be adverse to him. He is entitled to know the precise facts found by the Court, and the conclusions of law deduced from them before proceeding with his motion for a new trial, in order that he may be enabled to point out with precision the errors of the Court in matters either of fact or law.

This was the chief purpose to be subserved in requiring written findings to be filed on the request of a party; and this would be wholly defeated if he is compelled to proceed with his motion before the findings are filed. There could not well be a more striking illustration of this proposition, and of the embarrassments which may result to a party from the want of written findings, which he has requested, than this case afforded.

The defendant, in his answer, prays for affirmative relief, and the action involves not only a long account, running through a series of years, but also some perplexing questions, both of law and fact. The oral decision of the Court was, that judgment be entered for the defendant without costs. There was nothing to inform the defendant whether he was to have any, and if any, what affirmative relief; or if such relief was denied, there was nothing to indicate on what theory of the facts, or by reason of what deductions of law the result was reached.

If the defendant had not requested written findings, .there would have been no obligation on the Court to file them; and on being notified of the oral decision, the defendant would have had no other resource than to proceed with his motion for a new trial upon the lights then before him, and would have had no cause of complaint on that ground, if the Court had never filed written findings. But having requested them, he was entitled to have them before being compelled to proceed with his motion.

If the Court had refused to file them the defendant would have had a certain and sufficient remedy in an appeal from the judgment, without being put to the necessity of a motion for a new trial. But when the findings were filed it was competent for the defendant then to inaugurate his motion for. a new trial within the statutory time. I am, therefore, of opinion that the motion was in time. Within the proper time the defendant excepted to the findings as insufficient; but the Court refused to amend them, and this ruling is assigned as error. The findings are so manifestly defective as not to require comment.

Instead of stating facts involved in the issues, they contain only general conclusions drawn from the facts. They afford no information whatever as to the particular facts which the Court considered as established in the cause. The defendant was clearly entitled to have more specific findings on the facts within the issues; and on this ground the judgment should be reversed and a new trial awarded. We are urged by the appellant to look into the accounts, and by ordering a final judgment to put an end to this protracted litigation.

But there are several material facts on which the evidence is conflicting, and it is not the practice of this Court in such cases to adjudicate disputed facts. It is the province of the lower Court to pass upon the facts, and when there is a substantial conflict in the evidence we will not disturb its findings on the ground that they are against the weight of evidence. Judgment reversed and. cause remanded for a new trial. Mr. Justice Wallace, being disqualified, did not sit in this case.