
    Albright, Adm'r, v. Hawk et al.
    
      Finding of facts — Must determine the ultimate facts in issue — Finding of evidential facts not sufficient.
    
    (Decided March 5, 1895.)
    Error to the Circuit Court of Seneca county.
    
      John L. Cole and McCauley & Weller, for plaintiff in error.
    
      Chittenden & Derr, for defendants in error.
   By the Court.

The issues joined in the court of common pleas' required the defendants in error,’ who were plaintiffs there, to establish the death of Catharine Hawk as whose representatives they claimed to be entitled to share in the distribution of the personal estate of the intestate. On a trial to the court, and upon a request that its conclusions of fact should be separately stated from. its conclusions of law, the court found that Catharine Hawk had been absent for more than seven years, during which time she had not been seen nor heard from by her relatives or acquaintances; hut did not find that she was dead. It thereupon rendered judgment in favor of the defendants in error.

The most that can he claimed from the facts found is that they raise a rebuttable presumption of death. The record permits the assumption that such rebuttable presumption was overcome. To sustain a judgment it is necessary that the facts found be the ultimate facts in issue. A finding of facts that are only evidential in their character is not sufficient. The facts found must be conclusive upon the questions at issue. Leach v. Church, Adm'r, 10 Ohio St., 148; Jones et al. v. Brown, 11 Ohio St., 601.

There is error in the judgment of the court of common pleas, and that of the circuit court affirming it.

Both judgments a/re reversed.  