
    [No. 5462.]
    D. S. SMITH v. E. A. LAWRENCE.
    Waiver of Enromes. — The fact of non-waiver of findings must affirmatively appear in the statement or hill of exceptions.
    Appeal from the District Court of the Twelfth Judicial District, San Francisco.
    This case was before the Supreme Court upon a former appeal, which is reported in 38 Cal. 24. The action was brought in April, 1867, to recover money alleged to be due upon two promissory notes. Judgment was rendered for the plaintiff in February, 1875, and the defendant moved for a new trial, which was granted. The plaintiff appealed. The eleventh assignment of error, referred to in the opinion, is as follows: “ That the judgment should be set aside and a new trial granted because no findings were filed (and the same were not waived) before the entry of judgment.”
    In deciding the motion for a new trial the Court below used the following language:
    “ In this case it appears from the statement on appeal that there were no findings filed and that they were not waived. If this fact appeared by bill of exceptions there can be no doubt, under the recent decisions of the Supreme Court, but there would be such error as would reverse the judgment. I can see no difference in principle between a bill of exceptions and a motion for a new trial, as to this error in a trial. The findings are never filed until after a trial, and an assignment of error is practically therefore a bill of exceptions as to such an error.”
    
      E. B. Mastick, for Appellant.
    
      E. A. Lawrence, for Respondent.
   By the Court :

The Court below granted the motion for a new trial upon the assumption that it appeared in the settled statement that findings of fact had not been waived. In this it was mistaken. The only allusion to that matter is found in the eleventh assignment of error, in which the fact of non-waiver is assumed as a basis for stating the alleged error therein set forth.

There is no statement in the body of the bill of exceptions that findings had not been waived, and the fact of such non-waiver is not otherwise, or in any manner, made to appear in the record.

There are no specifications of the particulars in which the evidence is insufficient, and there was no error of law committed at the trial, excepted to by the defendant, such as would entitle him to a new trial.

Order reversed. Remittitur forthwith.  