
    [No. 4934.]
    PATRICK DOWD v. JEREMIAH CLARKE.
    Finding of Fact.—"When a canse is tried by the court without a jury the judge must find the facts unless they are waived. A judgment cannot stand unless there are full findings which respond to all the material issues made by the pleadings.
    Points that can be made on Appeal.—A party to an action is entitled to present on appeal the points, first, that the judgment is not a legal conclusion from the facts found; and second, that the evidence does not sustain the findings or some of them.
    Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.
    Action to enforce a contract in writing for the sale of real estate. The testimony was taken and the case was held under advisement by the court, and, after deliberation, the court directed judgment to be rendered for the defendant. No findings of fact were made. The plaintiff moved for a new trial and filed a statement in support of it, which was settled by the court. The motion for a new trial was denied. The point that no findings had been made was not raised either in the statement or in a bill of exceptions. In the statement the point was made that the decision was not sustained by the evidence; but the point could not be made that the findings were not sustained by the evidence, as there were no findings. The plaintiff appealed from the judgment and from an order denying a new trial.
    The other facts are stated in the opinion.
    
      D. M. Delmas, for the Appellant, argued that there should have been findings of fact.
    
      Williams & Tornton, for the Respondent.
   By the Court:

There are no “findings of fact” in this transcript, nor does it appear that such findings were waived in the court below, in any of the three modes provided for in section six hundred and thirty-four of the Code of Civil Procedure.

Unless waived, a judgment cannot be permitted to stand in the absence of findings of fact. The statute evidently requires full findings which shall respond to all the material issues made by the pleadings.

The object of the section of the Code relating to findings is to do away with the doctrine of implied findings, as based on the statute of 1861, and to separate, for the facility of investigation, questions of fact and law. A party to an action may now present, as distinct matters, first, the point that the judgment is not the legal conclusion from the facts found; and second, the point that the evidence does not sustain the findings, or some of them.

Judgment and order reversed, and cause remanded.  