Sun Insurance Co. v. White — 118 Cal. 468

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p. 468

[S. F. No. 1111.

Department One.

October 6, 1897.]

SUN INSURANCE COMPANY, Respondent, v. GEORGE E. WHITE, Appellant.

Headnote

Appeal—Motion op Respondent foe Reversal—Pabtial Confession op Ek-eoes.—On an appeal upon a judgment-roll containing a bill of exceptions in which there are many exceptions to the rulings of the court at the trial, not conceded by the respondent to be erroneous, and it is also claimed by the appellant that upon the findings of fact, judgment should have been rendered in appellant’s favor, the respondent ought not to be allowed to foreclose an examination of the record, after the parties have had an opportunity to be heard upon the merits, by a confession of errors in certain particulars only, and a motion of respondent for reversal of the judgment, and that the cause be remanded for a new trial, upon such partial confession of errors, must b'e denied.

MOTION in tbe Supreme Court to reverse a judgment upon a confession of errors by respondent.

Tbe facts are stated in tbe opinion of tbe court.

William T. Baggett, Dunne & MePike, Walter H. Linfortb, and Johnson, Linfortb & Whitaker, for Appellant.

Rhodes & Rhodes, for Respondent.

The respondent herein has filed a confession of errors committed by tbe superior court, in that at the trial it erroneously overruled tbe objections of the appellant to tbe admission of certain evidence, and also that a certain finding of fact is not sustained by tbe evidence; and has moved thereon for a reversal of tbe judgment, and that tbe canse be remanded for a new trial.

Tbe appeal is from tbe judgment alone, and is presented here upon tbe judgment-roll containing a bill of exceptions, in which are many exceptions to tbe rulings of the court at tbe trial not conceded by the respondent to be error, and also specifying many particulars in' which the evidence is alleged to be insufficient to sustain other findings than tbe one designated by tbe respondent. Tbe appellant resists tbe motion upon tbe ground that tbe confession of error does not extend to all errors assigned in tbe bill of exceptions, and upon tbe further ground that upon tbe find

p. 469

ings of fact made by the court it should have rendered judgment in hex favor.

If it appears from the record upon an appeal from a judgment that the findings of fact made by the court below are such as to require judgment thereon in favor of the appellant -rather than the respondent, this court is authorized to direct such judgment to be entered, unless it shall also appear that such findings are the result of evidence erroneously admitted or excluded. In such a case the court will direct a new trial'. (Code Oiv. Proc., sec. 53.) Such conclusion can be reached, however, only upon an examination of the record, and after the parties have had an opportunity to be heard upon the merits. The respondent ought not to be allowed to foreclose this examination and hearing by a confession of certain errors which may or may not be determinative of the rights of the parties.

The motion is denied.