which is not denied, advanced $2500 with the express understanding that it should be used by Levy to defraud Eastern merchants out of their goods, and culminating in what we think the evidence shows to be an arrangement between the plaintiff and defendant's unnatural son to induce defendant to execute the note and mortgage to secure, not an indebtedness of the cigar company, which she believed she was securing, but to secure the indebtedness of others. It is alleged in the answer, and, as we have stated, we think it may be fairly inferred from the evidence, that at the time Mrs. Levy signed the note and mortgage she believed she was securing a debt owing by the cigar company to the bank. In her testimony she says, referring to the several transactions between J. R. Levy, plaintiff, and John Bass, herein referred to: "I know nothing about these preliminary matters my son testified to." And there is nothing in the record which tends to contradict her statement on this point. She had not been advised, nor did she know, that the debt of the cigar company to the bank had been paid, and that J. R. Levy, her son, had in effect sold her out. All of these matters were concealed from her at the time she signed the mortgage, and both plaintiff and J. R. Levy must have known that she signed it under a misapprehension of the facts and circumstances leading up to and surrounding the transaction, because the record shows that when she signed the note and mortgage there was nothing owing by the cigar company to the bank. The effect of the transaction was to relieve Bass from all liability and shoulder the debt onto Mrs. Levy, who did not, either directly or indirectly, receive any consideration therefor or benefit therefrom. Nor did she know that she was assuming Bass' obligations, but, on the contrary, was led to believe that she was, as heretofore stated, securing the payment of a debt owing by the cigar company to the bank.

2

We are of the opinion that the sixth finding of fact made by the trial court is not only unsupported by, but is contrary to, the evidence. The finding is as follows: "That the said

note and mortgage were made, executed, and delivered by the defendant to the plaintiff for the purpose of securing a portion of certain indebtedness then and there due and owing from the Sam Levy Cigar Manufacturing Company, a corporation; and, in consideration of the execution and delivery of the said note and mortgage, the said plaintiff released and discharged the said indebtedness then and there owing by said Sam Levy Cigar Manufacturing Company to plaintiff; that the said note and mortgage were executed and delivered by defendant to plaintiff and were received by the plaintiff in good faith and without any agreement or contract, expressed or implied, upon the part of plaintiff other than is fully expressed in the terms of said note and mortgage; and the said plaintiff was not guilty of any fraud or deception or want of fair dealing in the negotiation with defendant which led up to or resulted in the giving of said note and mortgage or in any manner connected therewith."

The judgment is reversed. In view of the indefiniteness of the allegations of defendant's answer upon which she bases her defense, and because of which the plaintiff may have failed to introduce explanatory evidence, we have decided not to direct findings and judgment, but to reman/ the cause for a new trial, with directions to the lower court to permit the parties to amend their pleadings should they be so advised. Each party to pay his own costs on this appeal.

STRAUP. C. J., and FRICK, J., concur.

McCULLOUGH v. McCULLOUGH.

No. 2056. Decided January 10, 1910 (106 Pac. 665).

APPEAL AND ERROR-JUDGMENT ROLL-BILL OF EXCEPTIONS. A motion to modify a judgment, the affidavits in support thereof and the rulings and orders of the court made in respect thereto, are not a part of the judgment roll and cannot be reviewed on appeal unless preserved by and presented on a bill of exceptions. (Page 149.)

APPEAL from District Court, Second District; Hon. J. A. Howell, Judge.

Action by John McCullough against Mary McCullough.

From an order vacating the order substituting as defendant the administrator of defendant, and denying a motion. to modify the judgment rendered in the action, plaintiff appeals.

AFFIRMED.

V. C. Gunnell for appellant.

J. N. Kimball for respondent.

STRAUP, C. J.

In 1901, in an action wherein the appellant was plaintiff and Mary A. McCullough, defendant, a judgment of divorce was rendered on her counterclaim, in favor of the defendant, and certain real estate awarded to her. In 1902, and in that action, the appellant, by motion and on notice, asked that the decree in respect to the property awarded to defendant be modified. Upon a hearing had the motion was denied. Again, in 1905, the appellant made a similar motion, which

on a hearing was also denied. In December, 1908, the defendant died. In January, 1909, the appellant moved the court to substitute the administrator of her estate in the action, and again moved the court to modify the decree so as to award the property to the appellant. The order of substitution was made, but, on the appearance of the administrator, and on a hearing, the order was, in April, 1909, vacated, and the motion to modify the decree denied. These various motions were supported and resisted by affidavits. This appeal is taken from the order made, or judgment rendered, by the court in April, 1909, seeking to have reviewed the proceedings had with respect to them.

1

The respondent has challenged our power to review them because they are not preserved nor authenticated by a bill of exceptions. The appellant concedes that there is no bill of exceptions, but insists that the motions, petitions, and affidavits, and the proceedings had thereon, and the rulings and orders made in respect thereof, are a part of the judgment roll, and reviewable without a bill of exceptions. We think otherwise. To properly review such rulings and proceedings, it was essential to preserve them by, and to present them on, a bill of exceptions. Without it we cannot judicially know what they were.

There not being anything before us which is reviewable, it follows that the judgment of the court below must be affirmed, with costs. Such is the order.

FRICK and MCCARTY, JJ., concur.

SIERRA NEVADA LUMBER COMPANY v. McCOR

MICK, et al.

No. 2080. Decided January 10, 1910 (106 Pac. 666).

1. TRIAL

FINDINGS OF FACT AND CONCLUSIONS OF LAW. The findings should be limited to ultimate facts. (Page 153.)

2. TRIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW. If the court makes a finding of ultimate facts and additional findings of probative facts not shown to be the only probative facts established by the evidence, the judgment rendered in accordance with the ultimate facts cannot be attacked on the ground that the first findings are not true because contradicted by the probative facts. (Page 154.)

3. TRIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW. When the ultimate fact is found, no finding of probative facts which may tend to establish that the ultimate fact was found against the evidence can overcome the finding of the ultimate fact. (Page 154.)

If all

4. JUDGMENT-ON TRIAL OF ISSUES-CONFORMITY TO FINDINGS. the probative facts are found from which the ultimate facts necessarily follow, the judgment is good, though based entirely on the probative facts. (Page 155.)

5. JUDGMENT-FINDINGS OF FACT-CONCLUSIONS OF LAW. When the ultimate fact is found, the judgment rests on it, and not on the probative facts. (Page 155.)

6. APPEAL AND ERROR-REVIEW-PRESUMPTIONS.

A judgment is pre

sumed to be correct, unless the contrary appears from the record. (Page 157.)

7. APPEAL AND ERROR-RECORD QUESTIONS PRESENTED FOR REVIEW. Where, on appeal on the judgment roll alone, it appeared that the judgement was based entirely on a finding of the utimate fact that a certain sum was paid on the claim in suit and not on another account, and it appeared that an additional finding of probative facts did not contain all the probative facts on which the court found the ultimate fact of payment, the judgment could not be questioned on the ground that the conclusions of law as to the application of the payment were contrary to the probative facts found. (Page 157.)

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.