Majority
p. 628[No. 4712.] THE PEOPLE v. JENNIE A. FORBES.
Headnote
Finding of Facts.—If the answer does not deny the allegations of the complaint, but sets up new matter as a defense, a finding by the court that the facts stated in the complaint are true is not a finding upon all the issues. The court should find upon the new matter.Idem.—In such case no presumption will be indulged that findings were waived if the record is silent upon the subject.
Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.
Action to enforce a lien on a lot in San Francisco for a street assessment. The answer set up as an affirmative defense that the owners of a majority of the frontage of lots on the street improved did not sign the petition to improve the street, and that therefore the Board of Supervisors did not acquire jurisdiction. The court rendered judgment for the plaintiff and the defendant appealed.
The other facts are stated in the opinion.
B. S. Brooks and Wm. Leviston, for the Appellant.
W. C. Burnett and E. F Preston, for the Respondent.
First. The answer of the defendant set up certain affirmative defenses to the action, but did not purport to deny any allegation contained in the complaint. The only sup
p. 629
posed finding of facts is contained in the decree, where it is said by way of mere recital as follows: “And it further appearing that said complaint was duly verified, the court finds all the facts as stated in said complaint.” -Now in view of the circumstance that the defense did not rest either in whole or in part upon a denial of the allegations of the complaint, but entirely upon the new matter set up in the answer, a finding of “all the facts as stated in the complaint ” was not a disposition of the issues of fact involved in the case.
Second. We held here.(in Mulcahy v. Glazier, ante, p. 626), that if the record were entirely silent upon the question as to whether there had been a waiver of the finding of facts, we would presume in aid of the judgment below that such waiver had occurred. But it is clear that in view of the finding here made, and appearing in the record, no such presumption of a waiver of findings can be indulged.
Judgment and order denying a new trial reversed, and cause remanded for a new trial. B-emittitur forthwith.