Summary
In Mulcahy v. Glazier, 51 Cal. 626, the court said: "It is a well-settled rule that upon appeal taken error is not to be presumed, but must be affirmatively shown.
Summary of this case from Gordon v. DonahueOpinion
Rehearing (Denied, Granted) 51 Cal. 626 at 628.
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
The case was tried by the court and judgment was rendered for the plaintiff. No findings of fact were filed, nor did the transcript contain any bill of exceptions in relation to the want of findings, nor did it show that they were waived. The appellant brought up the testimony in a statement. The defendant appealed from the judgment rendered on the 16th day of December, 1874, and from an order denying a new trial.
COUNSEL:
Jarboe & Harrison, for the Appellant, cited Code of Civil Procedure, Secs. 632, 633 and 636, and Kid v. Reay (50 Cal. 61.)
Quint and Wilson, for Respondent, cited Cook v. De La Guerra , 24 Cal. 241; Buckout v. Swift , 27 Cal. 433; James v. Williams , 31 Cal. 211, and Secs. 650 and 651 of the Code of Civil Procedure.
OPINION By the Court, on petition for rehearing:
In Dowd v. Clark ante (p. 362), it was expressly admitted by counsel that findings of fact had not been waived in the court below, and the attention of this court was not addressed to the question of the presumption of waiver. It is now settled that a waiver of findings will be presumed where the failure to waive is not made to appear by bill of exceptions or other appropriate method.
The former opinion will, therefore, stand as the opinion of the court, and rehearing is denied.