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Leadbetter v. Lake

118 Cal. 515 Court Department Two. Decision date 1897-10-08 Docket S. F. No. 666 English

Judges ■Temple, J., and Henshaw, Jl, concurred.

Delivered by McFABLAND, J.

Contents

Majority

p. 515
[S. F. No. 666.
Department Two.
October 8, 1897.]
C. H. LEADBETTER et al., Appellants, v. FRED. W. LAKE et al., Respondents.

Headnote

Arpead—Judgment— Findings — Peesumption oe Waiver. — On an appeal from the judgment on the judgment-roll alone, all intendments are in its favor, and error must be affirmatively shown; and where the record is silent upon the subject, a waiver of findings will be presumed, and, if not waived, the fact must affirmatively appear by a bill of exceptions.
Id.—Jury Triad—Presumption oe Waiver.— Where the judgment recites that the cause was regularly heard before the court sitting without a jury, and it nowhere appears in the record that the appellant demanded a jury, the presumption is that a jury was waived.
Id.—Costs—Dependants Jointly Sued.—A joint judgment for costs in favor of defendants who were jointly sued, but who separately answered, is proper.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge.
The facts are stated in the opinion of the court.
Hillyer & Jacobs, for Appellants.
F. D. Brandon] and Cobb & Loefler, for Bespondents.

Judgment went in the court below for defendants. Plaintiffs appeal from tbe judgment, bringing up only tbe judgment-roll, wbicb consists of the pleadings and the judgment. The appellants ask for a reversal upon the ground that there were no findings, and that findings were not waived. But all intendments are in support of a judgment, arid he who expects to reverse it must affirmatively show error. It has been established by a long line of decisions of this court that where the record is silent upon the subject a waiver of findings will be pr&-sumed. The fact that findings were not waived must affirmatively appear by a bill of exceptions, unless tbe judgment-roll shows it. (In re Arguello, 85 Cal. 151 , and cases there cited on page 153.)

Appellants also claim a reversal upon the ground that there was no jury trial, and that a jury was not waived. The judgment shows that the cause “came on regularly to be heard before the \ourt sitting without a jury,” and it nowhere appears that the

p. 516
plaintiff demanded a juiy; and in snob a case the presumption is that a jury-was waived. In Montgomery v. Sayre, 91 Cal. 211 , this court say: “If the question were, did the defendant waive his right to a trial by jury—the record being silent upon the question and the cause having been tried and determined by the court —there would be no difficulty, for the authorities are explicit to the end that such would be the presumption. (Boston Tunnel Co. v. McKenzie, 67 Cal. 490 ." See, also, Smith v. Brannan, 13 Cal. 115 , 116.)

Appellants also claim a reversal because there was a joint judgment in favor of respondents for costs, while although sued jointly they answered separately—the contention of appellants being that there should have been a separate judgment in favor of each respondent -for his costs. But in such case there is no error in entering a joint judgment in favor of defendants. (Myers v. Moulton, 71 Cal 503 .)

The judgment appealed from is affirmed.

■Temple, J., and Henshaw, Jl, concurred.

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