Thompson v. O'Neil

By the Court, Crockett, J.:

The action is ejectment, and was tried before the Court without a jury. Written findings were filed, and a judgment entered for the defendant, from which the plaintiff appeals on the judgment roll alone, unsupported by a statement on appeal. The ground of error relied upon is that, on the facts expressly found, the plaintiff, and not the defendant, was entitled to judgment. But we must presume, in support of the judgment, that the Court found not only the facts included in the written findings, but also such other facts within the issues as are necessary to support the judgment. It is not enough that the written findings do not, of themselves, warrant the judgment; but to procure a reversal, the express findings must be absolutely inconsistent with the judgment, conceding all the other facts within the issues to have been found in accordance with it.

The facts within the issues not expressly found are presumed to have been in accordance with the judgment, which must, therefore, be affirmed, unless the express findings affirmatively show it to be erroneous. This has been too often . decided by this Court to merit further discussion. The plain *686 tiff relies solely on prior possession as proof of title, and the answer not only denies the plaintiff’s title and right of possession, but sets up as a separate defense an abandonment of the plaintiff’s claim 'prior to the commencement of the action. If it be conceded that in 1853 the plaintiff had the actual possession of the premises by means of a sufficient inclosure, he may, nevertheless, have abandoned the possession, or conveyed all his title to the defendant, or to a third person,'prior to the commencement of the action, either or both of which facts it was competent for the defendant to prove under the issues; and we must presume, in support of the judgment, that one or both of them were proved. If no other facts than those expressly found were proved at the trial, it should have been made so to appear, either in the findings themselves or on a motion for a new trial, or by a statement on appeal, in order to rebut the presumption that these facts were proved and found. But as the case is presented on the judgment roll, the presumptions arising from the implied findings are not rebutted, and no error is shown;

Judgment affirmed.