
    HARRY HAYNES, Appellant, v. BOLIVAR ROBERTS and R. JUDD, Respondents.
    Practice — Appeal—No Findings. — Waiver Presumed. — Error is not presumed on an appeal, but must be affirmatively shown, and when the trial court filed no findings, it will be presumed, on appeal, that findings were waived unless the contrary appears from the record.
    Appeal from a judgment of tbe district court of tbe third district. The opinion states the facts.
    
      Messrs. Woods & Hoffman, for the appellant.
    There were no findings of the facts put in issue by the pleadings in this case. The court never made or filed any findings of the facts upon which judgment was rendered.
    Section 505 of the practice act requires, in trials of issues of fact by the court, that findings of fact and conclusions of law must be separately stated, and judgment upon the decision must be entered accordingly. Section 506 of the same act provides how and when findings of facts are waived, but in each case such waiver is made a matter of record. The record in this case discloses no such waiver, consequently there is nothing to support the judgment, and it is void: Reich v. Rehellion, 3 Utah, 254; Kahn v. Central S. M. Co., 102 U. S., 641; Duff v. Fisher, 15 Cal., 376.
    
      Messrs. Williams & Young, for the respondents.
    It is a well settled rule that upon appeal taken, error is not to be presumed, but must be affirmatively shown: Mulcahij v. 'Glazier, 51 Cal., 626.
    The facts (if they be such) that there were no findings, and that they were not waived, must be made to appear affirmatively by a bill of exceptions, or other appropriate method, otherwise the presumption is that they were waived: 51 Cal. supra; Smith v. Latorence, 53 Cal., 34.
    
      The cases cited by the appellant, it is submitted, do not support his position. The case from 3 Utah, 254, is nearest in point, and it was decided under a statute very different from the one in force at the time of the trial below. Besides, if the statute in force at the time that case was tried was the same, it would seem that it was, both in the argument of counsel and consideration by the court, disposed of, as was the case of Dowd v. Clark, 51 Cal., 262, cited in the opinion of the court in the case of Mul-cahy v. Glazier, supra, in passing upon the petition for rehearing.
    The attention of the court was not directed to the question of the presumption of waiver, but on the contrary it appears from the report of the argument that counsel conceded that there were no findings, and contended that none were necessary.
   POWERS, J.:

In this case a jury was waived in the court below, and the same was tried on the twenty-fifth of March, 1885, by the court sitting without a jury. Judgment was rendered on the twenty-sixth of March, 1885, in favor of defendants, and against the plaintiff. The only error alleged is that the court never filed any findings of the facts upon which the judgment was rendered. It is a well-settled rule upon an appeal taken that error is not presumed, but must be affirmatively shown. All presumptions are in favor of the proceedings of the lower court, and of the validity of its judgment: Mulcahy v. Glazier, 51 Cal., 626. If there were no findings, and they were not waived, it should be shown affirmatively by a bill of exceptions, or some other appropriate method; otherwise the presumption is that the findings were waived: Id., Smith v. Lawrence, 53 Cal. 34. As the record in this case does not show affirmatively that findings were not waived, th.e judgment of the court below must be affirmed.

Zane, C. J., and Boreman, J., concurred.  