Sutter v. Streit

Scott, Judge,

delivered the opinion of the court.

1. Objections being made to the bill of exceptions, it will not be noticed, as it was not filed within time, it having been signed after the term at which the cause was tried, and no consent of record appearing. The case, then, will stand upon the record proper.

2. Although there was no date to the account filed with the plaintiff’s petition, it was competent for him to show, by evidence, that in point of time it was contracted subsequently to the period of the settlement stated in the defendant’s answer. There was no necessity for an amended petition to do this, and the amendment filed did not vary the plaintiff’s case as stated in the original petition. On the other hand, it was competent-for the defendant to show, by proof, that the items charged in the plaintiff’s account were included in the settlement set up in. his answer, which was sufficiently comprehensive for that purpose, although the time of the settlement, as stated, was prior to the date of the account.

3. This cause was tried by the court sitting as a jury, and the' law requires, in such cases, that a statement of the facts (not the evidence, but the facts the evidence conduces to prove) on which the judgment is founded, should be filed by the court trying the issues. This statement is the warrant for the judgment, and, upon an examination, it must appear that the judgment is sustained by it. The finding filed in this cause cannot be regarded as a compliance with the law. The only fact stated in the finding in support of the judgment is, “ that his testimony, (meaning the plaintiff’s, who was sworn,) as to the matter of the indebtedness and the settlement, is by no means, satisfactory.” None of the facts established by the evidence are set out. On this alone is the judgment founded, if we except what the court erroneously supposed was an admission by the defendant of the plaintiff’s account by his failure to answer, an amended petition, which did not vary,-the..’plaintiff’s casej-in point of law, and which was fully met by the answer first filed,. *160 as bas been before stated. If tbe plaintiff’s cause of action was unanswered, then there was no issue for the court to try. Why was not the default, for want of an answer noted, and the damages assessed ? The record shows that the defendant must have been surprised, as he was permitted on the pleadings to go into trial, supposing the fact in controversy was in issue, and was afterwards told that the plaintiff’s cause of action was admitted by the state of the pleadings.

4. Whenever the record proper in a cause is brought to this court by appeal or writ of error, this court will look into it, to see that the judgment rendered is warranted by law. Under the present practice, the statement of the facts found by the court, and required to be filed in the cause, is regarded as a part of the record proper, and no bill of exceptions is required to preserve it.

We are of the opinion that the record discloses a state of facts which requires the reversal of the judgment. The parties now fully understand each other, and their pleadings should be so amended as to present, beyond all cavil, the only fact in dispute between them, whether the items in the last account were included in any settlement between them.

The judgment is reversed, and the cause remanded ; the other judges concurring.