Vermule v. Shaw

delivered the opinion of the Court.

The statement in this case is not certified by the Judge, nor agreed upon by the parties. It is, therefore, no part of the record, and thus are excluded from our consideration the second and third points made by the appellant which depend upon it.

Upon the first point there is no error, because it must be supposed that the motion for a new trial before the Justice was abandoned, which the defendant had the right to do.

The fourth point made is, that the Judge who tried the cause did not file his finding of the facts until after the judgment was entered. It seems that judgment was entered on the 11th; on * the same day the Judge [216] wrote his findings of fact and conclusions of law; but did not file the paper containing them until the next day.

It is now urged, upon the authority of Russel v. Armador, 2 Cal. 305 , that this was error. But the case cited does not sustain the appellant. It only decides, that without the decision in writing of the Judge, the judgment cannot stand. It must be the basis of the judgment, like the special verdict of a jury, but that is its legal effect and operation. It is not necessary for this legal effect, that it should precede the judgment in point of time. The verdict of a jury must precede the judgment, from the nature and character of that institution, as a part of the judicial machinery of the Court; but where the jury is not resorted to, and their province is entrusted to the same head which declares the law and announces its decree, ■ I see no reason for establishing an unbending regulation as to the order of time in which the particular acts necessary for a valid judgment should take

Judgment affirmed.

delivered the following dissenting opinion:

It is my misfortune to differ from a majority of the Court in this case. Although the question is one of practice, which, when settled either way, may operate justly, still it is not without importance.

Section 180, chapter 5th of the Practice Act provides, “ Upon the trial of an issue of fact by the Court, its decisshall be given in writing and filed with the clerk, within ten days after the trial took place. In giving the decision, the facts found, and conclusions of law, shall be separately stated. Judgment upon the decision shall be executed accordingly. In the case of Russel v. Armador, 2 Cal. 305 , [217] Court held that the * finding was the basis of the judgment, in the same manner as the verdict of a jury; “and it follows,” says the Court, “that without such decision the judgment cannot stand,”

If the decision of the Court upon the questions of law and fact is to be regarded like the verdict of a jury, as the predicate of the judgment, it follows, that as no judgment could be rendered in anticipation of the verdict of the jury, or until the verdict was actually returned and recorded, so no judgment can be rendered until the Court has actually reduced its findings to writing.

The object of the statute in allowing ten day’s time, was for the purpose of enabling the Judge to separate the questions of law and fact, and to arrive at a proper decision of the points involved, not only for the convenience of the Court, and for the purpose of securing a correct administration of justice, but also to enable the parties below who

If, however, tbe Court can pronounce its oral opinion from tbe Bench, on wbicb judgment is entered, and afterwards file its decision in vacation, or after tbe lapse of months, it would be impossible for tbe party wishing to move for new trial, to know whether tbe Court bad decided against him on a question of law or fact. It might very well be, .that be would acquiesce in tbe decision, if based upon a question of fact, but in order to ascertain this, be is driven to bis appeal or mandamus, to learn what it was bis right to know in tbe first place, viz: tbe reason why judgment bad been rendered against him.

It is said this rule will work great hardship and inconvenience to tbe Courts below, when deciding causes on tbe eve of adjournment; that, in such cases, they may not be able to give their reasons for deciding a case, but may, during vacation, reduce their opinions to writing; in other words, find reasons to bolster up or sustain a previous judgment. A judgment for which a Court is unable to give any reasons, at tbe time of its rendition is, in my opinion, of but little account, and if tbe Court requires time to reduce it to shape, it would be as well to take time to consider tbe questions involved, before final judgment.

*The Court is not compelled to find and file its [218] conclusions within tbe ten days provided by statute, as we have already decided tbe provision as to time, is directory. Tbe better practice, therefore, in my opinion, would be to find tbe conclusions, in all cases, before entering judgment. In fact, from a careful examination of tbe statute, as well as tbe previous decision of this Court, I can arrive at no other conclusion than that tbe finding must, in every ease, precede tbe judgment, and that a judgment rendered before such finding is void.

For these reasons, I am of opinion that there is no finding of tbe Court below, as required by,.statute,.- and. that tbe judgment ought to be reversed.

In overruling a motion for rehearing, filed the following opinion:

I am of opinion, the petition for rehearing should be overruled. The question is one of practice alone, and having been decided by a majority of the Court, I abandon my objections, and acquiesce in the judgment.