a formal finding by the court, and no other or more formal findings are required.103 And it is well settled that findings need not be made upon immaterial issues.104 If the facts found sustain the judgment, it is not necessary to go further and find upon other issues.105 No findings are necessary on the allegations of a cross-complaint to which a demurrer has been sustained and no amendment made.106

§ 1170. Fraud.-A special finding on the question of fraud should always be taken.107 Where an infant files a bill to set aside a decree for fraud in fact in procuring it, and for fraud because the decree does not reserve to the infant a day in court after coming of age to contest it, and the court finds against the infant on his charge of fraud in fact, the finding is conclusive of the whole case, unless there is a very clear mistake of the court as to the fact of fraud.10 In an action against an attorney to set aside certain conveyances of property made to him by his client, on the ground of fraud practiced by the attorney in their procurement, and inadequacy of consideration, if to the contrary it be found that said consideration was fair and adequate, and that the client was willing to sell the property, then the further finding by the court that there was no fraud practiced by the attorney becomes immaterial for all purposes of the appeal by plaintiff. 109 In an action against a sheriff for wrongfully taking personal property, if he sets up that he took the same by virtue of an attachment, and that the goods were the property

103 Muller v. Rowell, 110 Cal. 318,

42 Pac. 804; Gregory v. Gregory, 102

Cal. 50, 36 Pac. 364.

104 Miller v. Luco, 80 Cal. 257, 22 Pac. 195; Souter v. Maguire, 78 Cal. 543, 21 Pac. 183; Diefendorff v. Hopkins, 95 Cal. 343, 28 Pac. 265, 30 Pac. 549; Groome v. Ogden City, 10 Utah, 54, 37 Pac. 90; Johnson v. Vance, 86 Cal. 128, 24 Pac. 863.

105 Malone v. Del Norte County, 77 Cal. 217, 19 Pac. 422; Dyer v. Brogan, 70 Cal. 136, 11 Pac. 589; Southern Pacific R. R. Co. v. Dufour, 95 Cal. 615, 30 Pac. 783, 19 L. R. A. 92; Posachane Water Co. v. Standart, 97 Cal. 476, 32 Pac. 532; Tage v. Alberts, 2 Idaho, 271, 13 Pac. 19; Maloney, Bosch, 104 Cal. 680, 38 Pac.

516; Morrison v. Stone, 103 Cal. 94, 37 Pac. 142; Leeke v. Hancock, 76 Cal. 127, 17 Pac. 937; Merrill v. Merrill, 102 Cal. 317, 36 Pac. 675. See, also, Ortega v. Cordero, 88 Cal. 221, 26 Pac. 80; Drinkhouse v. Spring Valley Water Co., 87 Cal. 253, 25 Pac. 420; Merrill v. Clark, 103 Cal. 367, 37 Pac. 238.

106 Kendall v. Waters, 68 Cal. 26, 8 Pac. 510. See Lion v. McClory, 106 Cal. 623, 40 Pac. 12.

107 Davis v. Robinson, 10 Cal. 411; Gillan v. Metcalf, 7 Cal. 137.

108 Regla v. Martin, 19 Cal. 463; Adams v. Hopkins, 144 Cal. 19, 77 Pac. 712.

109 Kisling v. Shaw, 33 Cal. 425, 91 Am. Dec. 644.

of the defendant in the attachment, and that he fraudulently sold them to this plaintiff, the court must find as to the issue of fraud thus raised.110 In such actions, findings showing the situation of the parties and the circumstances under which the alleged fraud was committed are responsive to the issues, and not objectionable as being outside thereof.111

§ 1171. General and special findings. When the court sits as a jury in the trial of a cause, it must in all cases find the facts specially.112 If discrepancy exists between the special and general findings in a case, the special findings must control.113 A general finding is sufficient if the answer is merely a general denial. But the general findings lose none of their certainty because certain specific findings are made in addition.114 Findings stating: 1. That the material allegations in plaintiff's complaint and replication are true; 2. That the material allegations in defendant's answer are not true,-are insufficient in not specifying distinctly the allegations which are material.115 So, also, a finding "that all the issues of fact raised by the pleadings are hereby found and decided in favor of the plaintiffs and against the defendant," is indefinite and insufficient.116 It has been held, however, that a general finding by the court that "all the allegations and averments in plaintiff's complaint are true, and that all in the answer are untrue," is sufficient and conclusive of all the material issues made by said pleadings.117

§ 1172. Findings-Trial by court without jury. In an action tried by the court without the intervention of a jury, findings must be made on all the material issues.118 The findings

110 Harris v. Burns, 51 Cal. 528. 111 Tage v. Alberts, 2 Idaho, 271, 13 Pac. 19.

112 Breeze v. Doyle, 19 Cal. 101; Quinlan v. Calvert, 31 Mont. 115, 77 Pac. 428; Mont. Code Civ. Proc., § 1112.

113 Lees v. Clark, 20 Cal. 387; Hidden v. Jordan, 28 Cal. 301; Geer v. Sibley, 83 Cal. 1, 23 Pac. 220; Cox v. Delmas, 99 Cal. 104, 33 Pac. 836; Warder v. Enslen, 73 Cal. 291, 14 Pac. 874; Gates v. Chicago etc. Ry. Co., 2 S. Dak, 422, 50 N. W. 907.

114 Chatfield v. Continental Eldg.

etc. Assoc., 6 Cal. App. 665, 92 Pac. 1040.

115 Breeze v. Doyle, 19 Cal. 101. 116 Johnson v. Squires, 53 Cal. 37. 117 Pralus v. Pacific G. & S. M. Co., 35 Cal. 30; Downer v. Sexton, 17 Wis. 29. See, also, Dougherty v. Ward, 89 Cal. 81, 26 Pac. 638.

118 Drainage District v. Crow, 20 Or. 535, 26 Pac. 845; Jameson v. Coldwell, 25 Or. 199, 35 Pac. 245; Savings & Loan Soc. v. Thorne, 67 Cal. 53, 7 Pac. 36; Bennett v. Pardini, 63 Cal. 154; Gull River Lumber Co. v. School District, 1 N. Dak. 500,

should cover all the material issues, and not merely such as may be sufficient to support the judgment.119 It is not sufficient to say that it is impossible to make the finding. If no sufficient evidence be introduced, the finding should be against the party upon whom was the burden of proof.120 But the failure of the trial court to find upon all the material issues raised by the pleadings is not prejudicial error, where the court finds upon an issue the determination of which controls the judgment, and where a finding in favor of the appellants upon every other issue would not justify a contrary judgment.121 Where the ultimate facts in issue are found by the court, a contradictory finding as to a probative fact involved therein has no effect.122 But when a material finding of fact is unsupported by the evidence, and is contradictory to other findings, the failure to make the finding in accordance with the evidence necessitates a new trial.12 123

§ 1173. Jurisdiction.-If the findings of the court be that defendant was duly served with process, it is sufficient to establish the fact of jurisdiction on that ground.124 A finding that defendant was not bound by certain foreclosure proceedings because the appearance made by attorneys for defendant was unauthorized, yet that defendant had ratified such appearance by certain acts, will not support judgment against defendant, because the question of verification was not raised by the issues.125

§ 1174. Membership in company. Where one defendant pleads that he is not a member of the company sued, and the court finds that the allegations of the complaint are true, and that he is a member of the company, as to plaintiff, the finding is sufficient. 126

48 N. W. 427; Richardson v. City of Eureka, 110 Cal. 441, 42 Pac. 965.

119 Potwin v. Blasher, 9 Wash. 460, 37 Pac. 710.

120 Leviston v. Ryan, 75 Cal. 293, 17 Pac. 239; Monterey Co. v. Cushing, 83 Cal. 510, 23 Pac. 700. See Demartin v. Demartin, 85 Cal. 71, 24 Pac. 594.

121 Winhaus v. Bootz, 92 Cal. 617, 28 Pac. 557. See Tage v. Alberts, 2 Idaho, 271, 13 Pac. 19; Joslyn v. Smith, 2 N. Dak. 53, 49 N. W. 382, to the effect that a judgment will not

be reversed for want of a finding upon a particular issue, where it is apparent that the omission in no way prejudiced the appellant. See, also, Murphy v. Bennett, 68 Cal. 528, 9 Pac. 738.

122 Lucas v. Richardson, 68 Cal. 618, 10 Pac. 183.

123 Felton v. Le Breton, 92 Cal. 457, 28 Pac. 490.

124 Lick v. Stockdale, 18 Cal. 219. 125 Male v. Schaut, 41 Or. 425, 69 Pac. 137.

120 Parke v. Hinds, 14 Cal. 415.

§ 1175. Money deposit.--The finding of the court that money was deposited with one, to be held by him on deposit, and in trust for a party, is not open to the objection that it does not specify the kind of deposit.127

§ 1176. Note.-Where the declaration was upon a note, and the court found that the note was never given, but that the indebtedness was for merchandise sold, it was held that the finding was against the averment, and could not support the judgment.128 In a suit on an insurance policy pledged to secure a note, now outlawed, a finding to the effect that the note is barred by the statute of limitations is immaterial, since the pledge could still be held.129 A finding that a certain balance is due and owing from the defendant to the plaintiff upon the note in suit states merely a conclusion of law, and is not a finding of fact covering the issue of non-payment.130 Finding as to law of another state, sufficiency of;131 in action for accounting of trust funds;132 in action for materials furnished and labor performed, insufficiency of;133 in action of partition, judgment reversed;134 as to value in action of claim and delivery,135 are proper findings of facts.

§ 1177. Note and mortgage.-That "it appears from the note and mortgage sued on that there was due plaintiff, at the date of the commencement of this suit, for principal and interest upon the debt and mortgage mentioned and set forth in the complaint, the sum of two thousand dollars," is a sufficient finding of the execution and delivery of the note and mortgage.136

§ 1178. Practice on findings. The court should first ask counsel on both sides if they desire findings, and if they do, reserve its judgment, and direct each side to prepare and submit such questions of fact as they desire to have found.137 And the party requiring a finding should specify the point upon which

he desires it.138 The court may file written findings, whether requested or not.139 It is the right of the judge of the court to sign and file his findings, whether drafted by himself or another, without notice to the attorneys of the parties; and in doing so, his sole duty is to see that they are proper, and in conformity with his view of the facts and law of the case.140 Neither evidence, argument, nor comment has any legitimate place in findings of fact or law.11 The trial judge may himself prepare the findings, and is not required to adopt those prepared by counsel.142 If the complaint be sufficient, a finding by reference to it is sufficient.143

In some states, if a party desires findings, he must request them at the close of the evidence and argument;144 and a request made after the filing of findings and conclusions of law is made too late.145 But if the court states that it will make findings, the parties are relieved from making a request, and a submission of written findings has the effect of requesting written findings on the material issue.146 A finding desired on issues made by the evidence, outside the pleadings, should be asked for.147

§ 1179. Inconsistent findings.-Special findings prevail over the general, if they conflict.148 An agreed statement of facts has the effect of special findings, and a conclusion of law contradictory to the agreement will vitiate the judgment based thereon.149 If the court finds no fraud, and that a deed was taken to satisfy

237; Edgar v. Stevenson, 70 Cal. 286, 11 Pac. 704.

138 Miller v. Steen, 30 Cal. 402, 89 Am. Dec. 124.

139 Gay v. Moss, 34 Cal. 125.

140 Hathaway v. Ryan, 35 Cal. 188. 141 Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449; Coveny v. Hale, 49 Cal. 552; Coglan v. Beard, 65 Cal. 58, 2 Pac. 737. Evidential facts have no proper place in the findings. Ornbaum v. His Creditors, 61 Cal. 455; Boskowitz v. Nickel, 97 Cal. 19, 31 Pac. 732; Blessing v. Sias, 7 Mont. 103, 14 Pac. 663.

142 Barnhart v. Fulkerth, 73 Cal. 526, 15 Pac. 89. As to omission of judge's signature, see National Tube Works Co. v. City of Chamberlain, 5 Dak. 54, 37 N. W. 761.

143 Gwinn v. Hamilton, 75 Cal. 265, 17 Pac. 212.

144 Mont. Rev. Codes, § 6766; Wyo. Rev. Stats., § 3660.

145 Schilling v. Curran, 30 Mont. 370, 76 Pac. 998; Bordeau v. Bordeau, 32 Mont. 159, 80 Pac. 6; First Nat. Bank v. Citizen State Bank, 11 Wyo. 32, 100 Am. St. Rep. 925, 70 Pac. 726.

146 Quinlan v. Calvert, 31 Mont. 115, 77 Pac. 428.

147 Jennings v. Frazier, 46 Or. 470, 80 Pac. 1011; Reade v. Pacific Coast etc., 40 Or. 60, 66 Pac. 443.

148 McCormick v. National Surety Co., 134 Cal. 510, 66 Pac. 741.

149 Birney v. Warren, 28 Mont. 64, 72 Pac. 293.