
    [No. 47.
    Decided November 18, 1890.]
    Frank M. Bard, H. C. Patrick and Johnson Stout v. John W. Kleeb.
    
      FINDINGS OF PACT.
    A recital in a judgment that “the court finds the matters and things set forth in the complaint are true” is not a sufficient finding of facts, as required by § 246, Code Wash. T.; especially when the reply admits that one of the allegations of the complaint is untrue.
    
      Appeal from District Court, Pierce County.
    
    The facts are set out in the opinion.
    
      Town & Likens, for appellants.
    
      Applegate & Titlow, for appellee.
   The opinion of the court was delivered by

Stiles, J.

This was a bill in equity filed to compel the specific performance of a contract for the sale of standing timber, and numerous articles of personal property, the performance involving the payment of the sum of $302.75 in money, the execution and delivery of certain promissory notes secured by a mortgage, and the procurement of a policy of insurance. An injunction to restrain the sale of the contracted property, and the appointment of a receiver, were asked, pending the litigation. The cause was tried by the court, and a judgment for $2,199.65 and costs was rendered against the defendants. A motion for a new trial was denied and the cause appealed to this court. One of the grounds for a reversal urged by the appellants is, that no findings of fact or law were filed by the court as required by § 246 of the code, and as we consider the objection well taken, we shall confine our decision to that point, in the main. Section 246 is as follows: “ Upon the trial of an issue of fact by the court, its decision shall be given in writing and filed with the clerk. In giving the decision, the facts found and the conclusions of law shall be separately stated. Judgment upon the decision shall be entered accordingly.” This language is almost precisely the same as that of §§ 632-3 of the Code of Civil Procedure of California. No findings of fact whatever were made or filed in this case, it is conceded. But the appellee points out that in the judgment there occurs the following: “The court finds the matters and things set forth in the complaint are true, and that upon the cause of action therein set forth, said defendants, Bard and Patrick, are indebted to the plaintiff in the sum of three hundred and two dollars and twenty-five cents ($302.25), with interest thereon at the rate of ten per cent, per annum from October 8, 1888, and the further sum of two thousand dollars ($2,000.00), with interest thereon at the rate of eight per cent, per annum from the 20th. day of October, A. D. 1888, and the further sum of ten dollars ($10.00) for his attorney fee herein; and that on account of the matters set up in the answer, defendants are entitled to recover, by way of set-off against plaintiff’s demand, the sum of two hundred and fifty dollars ($250.00), to be deducted as of the date October 20, 1888.” This we are urged to accept as a compliance with the statute, inasmuch as it is there stated that the court “ finds the matters and things set forth in the complaint are true,” and several cases from the California reports are cited to sustain this view, or to avoid the effect of the omission, should we not agree with the appellee. So far as we are aware, from the Washington Territory reports, this is the first time this issue has been squarely raised here, and we shall therefore allude to a number of California cases on the subject. In McEwen v. Johnson, 7 Cal. 258, is the first instance where findings of fact made by reference to the pleadings were sustained, but there the findings were: “ That the facts stated in the plaintiffs complaint are true,” and “ That the facts stated in the defendant’s answer are not true,” and the court said: “ Under these provisions, we think that the finding may well refer to the pleadings for a specification of the facts found, and not found; provided, such reference is sufficiently distinct to make it intelligible, and the facts are sufficiently stated in the pleadings. In this case there was a very clear and simple statement of the facts, in both the complaint and answer.” In Pralus v. Mining Co., 35 Cal. 30, the decision says: “ The special findings of fact by the court, as found in the record, cover the material issues in the case, and the general finding that ‘all the allegations and averments in plaintiff’s complaint are true, and that all in the answer are untrije,’ is sufficient and conclusive of all the issues made by the pleading,” citing McEwen v. Johnson. In Williams v. Hill, 54 Cal. 390, the statement is: “ The objections that the findings do not support the judgment, in that the court did not find as to the alleged mistake, is fully-answered by the finding of the court ‘that all the facts set forth in the complaint are true/ and by the fourth finding.” Carey v. Brown, 58 Cal. 180, sustains the finding : “That all the allegations of the complaint are true, and all the allegations of the answer are untrue,” on the authority of Pralus v. Mining Co. Likewise in Davis v. Drew, 58 Cal. 152, certain findings of the court were objected to, one of them being in the following form: “ 4. And all and singular the allegations contained in paragraphs 1,2,3 and 4 of defendant’s answer are true.” But the supreme court sustained the finding, with this exclamation of regret: “This mode of finding facts by reference to the answer,or portions of it, is not to be commended. It imposes greater labor in this court, both on counsel and court. But our predecessors have accepted such findings as proper and sufficient, and therefore we do not feel disposed to adopt a different course.” There are many other cases in the California reports on this subject, but we do not find a single one in which a total absence of findings was sustained, except for reasons hereafter mentioned, or one in which the recitals of a judgment were taken as a compliance with the law. In every oneof the cases mentioned above, findings wer & filed, and in all but the first there were special as well as general findings. We now stand where the supreme court of California stood in 1857, when it passed upon the case of Mc-Ewen v. Johnson, and we deem it better, as we have the opportunity, to shape the practice in this state so that our successors may not have to repeat the helpless plaint of the California supreme court, when deciding Davis v. Drew, in 1881. The cases in California, however, hold that unless it appears affirmatively,by the record, that findings of fact were not waived in the court below, it will be taken that there was a waiver, and therefore no error, and ap-pellees urge a like practice here. But § 634 of the California Code of Civil Procedure expressly provides three methods by which findings of fact may be waived, and the case of Mulcahy v. Glazier, 51 Cal. 626, clearly explains the theory upon which the supreme court of that state holds as it does as to waivers. It is enough to say that we have no statutory provision of this sort whatever, and therefore nothing to base such ruling upon. Eakin v. McCraith, 2 Wash. T. 112, is cited to sustain the proposition that if the findings are general, the aggrieved party must move in the court below, to have them made more specific. But that was not a case where there were no findings; on the contrary, the findings made and filed are quoted in- the opinion, and we do not observe that any point was made in the argument as reported, against the findings, but even if there were, we do not dissent from the decision of our predecessors under the circumstances stated in their decision.

The case under consideration is, therefore, not parallel with any of the cases cited or discussed above. The complaint was long and much involved. The answer, in addition togeneraldenialsofalmosteverythinginthecomplaint, alleged fraudulent misrepresentations, payment, compliance with the contract, and failure of the plaintiff to comply, and his want of ability to comply, besides a paragraph in the nature of a counterclaim for damages, and the reply admitted one very material allegation of the complaint, viz.: the ownership of certain timber contracted to be sold, to be untrue. Therefore, were we to admit that the recital in the judgment that the court finds the matters and things set forth in the complaint are true,” to be a finding, within the statute, we must hold it to be entirely insufficient. Indeed, the court could not find the allegations of the complaint to be true in the face of the admission of the reply as to the ownership of the timber. Again, this “finding” makesno disposition whatever of the allegations of the answer, except that it awards $250.00 to the defendants, but whether as damages or on account of payments alleged, does not appear. And the judgment itself, being for $2,199.65 in favor of the plaintiff, negatives the idea that the allegations of the complaint were found to be true, since under its allegations the judgment prayed for would have been the only proper judgment, and not a judgment for money. True, we are informed in the course of argument by counsel, that the time for the payment of the notes for $2,000.00 had expired at the time of the trial, and for that reason the money judgment was entered; but that could not be done without the filing of a supplemental complaint, under code, § 114, when the cause of action would change from that of specific performance to one of money demand on contract, with, perhaps, a foreclosure of the promised mortgage.

Under these circumstances it is unnecessary for .us to revert to or pass upon the numerous errors assigned by the appellants, upon the court’s refusal to admit certain testimony of the defendant, and to exclude certain testimony of the plaintiffs, except that we may say that there are twenty-seven of these alleged errors, requiring the minute examination of the whole mass of shorthand testimony, and the retrial of the entire case, all of which serves to emphasize the necessity of proper findings in this instance. These alleged errors were nearly all connected with the introduction of a certain written contract, which was the basis of the action, and if we had here the view of the trial court, expressed in the findings concerning that contract, there would have been little or no propriety in bringing up the voluminous testimony, as the appeal would, in all probability, have been based upon the proposition that the conclusions ofolaw and the judgment were not warranted by the facts found, a pure question of law, not requiring any statement of facts or the great expense necessary to its preparation and settlement.

As we regard it, § 246 is for the protection of court and parties. To the court it gives an opportunity to place upon record, its view of the facts and the law in definite written form, sufficiently at large that there may be no mistake. To parties it furnishes the means of having their causes reviewed, in many instances without great expense. The findings of fact are deemed a verdict, and are subject to the same rule as a verdict; and that they be found, is a substantial right, as inviolate, under the statute, as that of trial by jury under the constitution, without express waiver.

While we are upon this subject, and touching the requisites of proper findings, we cite Breeze v. Doyle, 19 Cal. 102, and Hidden v. Jordan, 28 Cal. 302, as authorities. The judgment of the court below must be reversed, and a new trial granted, with leave to the plaintiff to file a supplemental complaint, and with further proceedings in accordance with this opinion. And it is so ordered; costs to appellants.

ÁNDers, C. J., and Hoyt and Scott, JJ., concur.

DuNbar, J., not sitting.

ON PETITION EOR REHEARING.

Stiles, J.

In this case, a petition for rehearing having been filed, in denying the petition, we deem it proper to add to the opinion on file something by way of enlargement and explanation, as it appears the opinion may be misunderstood.

In the first place, the statement in the opinion that this was a case in equity, goes no further than that the form of the complaint made it appear so. The cause, for the reason that the sums alleged to be due had become due before the trial, was treated by the court and„parties as an action at law for money due, and the judgment was for money. Under this view of it, the right to a trial by a jury existed, and when the court tried the case without, its proceeding was controlled by § 246, requiring the findings of facts and conclusions of law. Whether, in a purely equitable action, findings are necessary, it is not necessary to hold; but it would seem not, as such cases come up on appeal from final judgment upon the entire record and testimony for a new trial in this court. It is urged that \ 451 of the code practically does away with § 246; but we view the former section as only applying to equity causes, and as to be read in connection with that part of § 464 which refers to actions by equitable proceedings. Moreover, were the ap-pellee’s position as to § 451 admitted, its terms were not complied with. The evidence was not certified as required in that section, but in the form of a statement under the act of 1883; and not being so certified, the plain inference would be, that this obstacle to the objection that there were findings had no existence.

ANDers, C. J., and Scott, Hoyt and Dunbar, JJ., concur.  