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Himmelmann v. Sherman

1 Cal. Unrep. 803 Court Cal. Decision date 1873-10-20 Docket No. 3549 English

Judges We concur: Crockett, J.; Niles, J.; Wallace, C. J.; Rhodes, J.

Delivered by BELCHER, J.

Contents

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A. HIMMELMANN, Appellant, v. O. D. SHERMAN, Respondent.
No. 3549;
October 20, 1873.

Headnote

Appeal — Sufficiency of Evidence. — Wlien No Motion for a New Trial was made before the court below, the question of whether the judgment was justified by the evidence will not be considered on appeal.
Appeal — Presumptions.—When There are No Findings in Writing, every fact within the issues presented by the pleadings which are necessary to support the judgment will be presumed, on appeal, to have been found in favor of the prevailing party.
APPEAL from Third Judicial District, San Francisco County.
I. C. Bates for appellant; C. A. Lon and D. H. Whittemore for respondent.

— This action, which was for a street assessment in the city of San Francisco, was tried by the court without a jury, and judgment was rendered in favor of the defendant. No written findings were requested or filed, nor was there any motion for a new trial. The appeal is from the judgment, and is based upon a statement which specifies certain alleged errors in the admission of testimony and that the decision and judgment are not supported by the evidence.

It is settled that, when there has been no motion for a new trial, this court will not consider the question whether the judgment was justified by the evidence: Reed v. Bernal, 40 Cal, 628 .

It is also settled by a large number of decisions that, when there are no findings in writing, every fact within the issues presented by the pleadings which is necessary to support the judgment will be presumed to have been found in favor of the prevailing party.

Among the issues presented in this case was, first, whether the board of supervisors ever adopted a resolution declaring their intention to order the work to be done; and, second, whether any such resolution was ever published by order

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of the board, or at all. These issues, being found for the defendant, are decisive of the case, and the judgment must be affirmed.

So ordered.

We concur: Crockett, J.; Niles, J.; Wallace, C. J.; Rhodes, J.