4. In an action to recover the possession of personal property, with damages for its detention, the judgment may be for more than the value as alleged in the complaint, if it be within the ad damnum of the writ. The value of the property is only one predicate of the recovery. Coghill v. Boring, 15 Cal. 218.

5. The rule is, that when property converted has a fixed value, the measure of damages is that value, with legal interest from the time of its conversion; when the value is fluctuating, the plaintiff may recover the highest value at the time of its conversion, or at any time afterwards. Douglass v. Craft, 9 Cal. 563; Dorsey v. Manlove, 14 Id. 565.

§ 178. Entry of verdict.

Upon receiving a verdict, an entry shall be made by the Clerk in the minutes of the Court, specifying the time of trial, the names of the jurors and witnesses, and the verdict; and where a special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it.

N. Y. Code, § 264; see also, § 173, supra, and notes.

1. If the Court, instead of having the verdict corrected by the jury, attempt to correct it by the judgment, and go beyond the verdict, it is error. Kilburn v. Ritchie, 2 Cal. 145.

2. Where there is no question as to the proper judgment to be entered on a verdict, the judgment should be entered at once, without waiting for a motion for a new trial. Hutchinson v. Bours, 13 Cal. 50.

3. A Court may, in term time or vacation, order judgment on a verdict rendered and recorded, if the motion for new trial were taken under advisement. Id. 4. The judgment, in pursuance of the verdict, is the act of law upon record facts, and follows as a matter of course, unless the Court intervene. Id.

5. Counsel, in the trial of a cause, cannot object that the Court did not render judgment on the special verdict of the jury, where they have stipulated that such additional facts may be found by the Judge as would, in his judgment, be sufficient to present all the questions raised by the pleadings. Marius v. Bicknell, 10 Cal.

224.

CHAPTER V.-Trial by the Court.

SEC. 179. When and how trial by jury may be waived. 180. Decision on trial of issue of fact by the Court. 181. A reference may be ordered, when.

§ 179. When and how trial by jury may be waived.

Trial by jury may be waived by the several parties to an issue of fact, in actions arising on contract; and, with the assent of the Court, in other actions, in the manner following:

1st. By failing to appear at the trial.

2d. By written consent, in person or by attorney, filed with the Clerk.

3d. By oral consent in open Court, entered in the minutes. The Court may prescribe by rule what shall be deemed a waiver in other

cases.

1. Generally.-The right of trial by jury may be waived in the mode prescribed by law. Russell v. Elliott, 2 Cal. 245.

2. The right of trial by jury cannot be waived by implication, but may be in the mode prescribed by law. Smith v. Pollock, 2 Cal. 92; Russell v. Elliott, Id. 245; Exline v. Smith, 5 Id. 112.

3. The Legislature alone can determine in what cases the right of trial by jury may be waived. Exline v. Smith, 5 Cal. 112.

4. A party having filed an undertaking to obtain an injunction, is deemed to have waived the right to insist on a trial by jury, and consented that the damages should be ascertained as prescribed by the statute; and an order of reference is no violation of the right to a trial by jury. Russell v. Elliott, 2 Cal. 245.

5. Parties to a suit in chancery are not entitled to a trial by jury. Walker v. Sedgwick, 5 Cal. 192; questioned in Duff v. Fisher, 15 Id. 376.

6. It would seem that a party cannot try his cause before a Judge without objection, and after losing it, complain that the case was not tried by a jury. Smith v. Brannan, 13 Cal. 107.

7. First subdivision.-The failure of either party to appear on the trial of a civil case, operates as a consent on his part that the issue be tried by the Court without a jury. But such failure to appear does not authorize the trial to be had by a jury of less than twelve persons. Gillespie v. Benson, 18 Cal. 409.

8. A less number than twelve persons does not constitute a legal jury, without the consent of the adverse party; and such consent must be express, and entered at the time in the minutes of the Court, and cannot be inferred from the mere absence of the party. Id.

Sec. 150. Upon a trial of issue of fact by the Court, not operate as an appearance at the judgment shall be entered in accordance with the find1, under the one hundred and seventy

ing of the Court; and the finding, if required by either

party, shall be reduced to writing and filed with the Crowe, 4 Cal. 112.

Clerk. In the finding filed the facts found and the on the trial of an action of replevin, conclusions of law shall be separately stated. In such, under the one hundred and seventycases no judgment shall be reversed on appeal for

want of a finding in writing at the instance of any v. Carson, 10 Cal. 178.

party who at the time of the submission of the cause o appear when the cause is called for shall not have requested a finding in writing and had purt to try it without a jury. Doll v. such request entered in the minutes of the Court; nor

in cases tried by the Court, by a Commissioner, or a

referee, shall the judgment be reversed on appeal for nded was specific performance of a defects in the finding unless exceptions be made in the plaint showed a case for damages, but Court below for a defect in the finding; and in cases of exceptions for defective findings, the particular point s tried before a Judge without a jury, or issue upon which the party requires a finding to be had been entered upon, the defendant made, or the particular defect to be remedied, shall be round, among others, that the cause specific and particularly designated; and upon failure denied, and the judgment was for the of the Court to remedy (or, when tried by a Commissioner deemed to have waived a jury trial. or referee, to cause to be remedied by such Commissioner or referee) the alleged defect, the party moving shall be is absolute, and any decision of the entitled to his exceptions, and the same shall be ld be plainly erroneous. settled by the Judge as in other casesp. ovided, that ho is entitled to it enters voluntarily But it is a when any cause is tried and submitted upon a written

statement of facts agreed to by the parties or their at-, he would ordinarily, no doubt, be torneys, such statement shall have the effect of a spe- al. In this case, the defendants not cial verdict or finding of facts, and judgment shall be al by jury until after the Judge had pronounced thereon as upon a special verdict or find-h stated was insisted upon only as one ing of facts; and in such case no finding of facts shall If the defendants intended to insist

be made, unless such statement shall fail to embrace all the facts proved and in issue, in which case any ad- d by a jury, they should have raised ditional fact may be found upon evidence which is not r at least should have persisted in the repugnant to the agreed statement.

1. 1. (2 E. Smith) R. 491.

$180. Decision on trial of issue of fact by the Court.

Upon the trial of an issue of fact by the Court, its decision shall be given in writing, and filed with the Clerk, within ten days after?

the trial took place. In giving the decision, the facts found, and the conclusions of law, shall be separately stated. Judgment upon the decision shall be entered accordingly.

1. Directory. This section is directory as to the time required for the written decision to be filed. Vermule v. Shaw, 4 Cal. 216.

2. This section applicable to cases both at law and in equity. The Act of 1861, regulating appeals, changes the rule laid down in Walker v. Sedgwick, (5 Cal. 192) and makes the statute, as to findings of fact and conclusions of law, applicable to cases both in law and in equity. Lyons v. Lyons, 18 Cal. 447.

3. The statute which requires, that upon the trial of an issue of fact by the Court, the decision shall state separately the facts and conclusions of law, does not apply in chancery cases. Walker v. Sedgwick, 5 Cal. 192.

4. Walker v. Sedgwick (5 Cal. 192) only decides that, under the Practice Act, the rule requiring the Court to find its conclusions of law and fact does not apply to equity cases, and does not conflict with our decision here. But we doubt that case, and leave the question of overruling it open. Duff v. Fisher, 15 Cal. 375.

5. May refer to the pleadings, when.-The findings of a Court sitting as a jury may refer to the pleadings for the facts found, provided the reference is sufficiently distinct, and the facts are sufficiently stated in the pleadings. MeEwen v. Johnson, 7 Cal. 258.

6. The findings of the Court may refer to the pleadings. As for instance, it would be sufficient to find that the promissory note, mortgage, or other instrument, set forth in the complaint, was executed by the parties, and at the time as therein alleged; and so with other matters alleged, which are established by the evidence. But in all such cases, the reference should be distinct and pointed, so as to leave no doubt as to what particular facts are intended. Breeze v. Doyle, 19 Cal. 101.

7. Sufficiency, test of.-The true test of the sufficiency of the findings of a Court is this: Would they answer if presented by a jury in the form of a special verdict? Id.

8. Sufficient findings.-Where, on suit against defendants as members of a quartz company, one defendant pleads that he was not a member of the company, and the finding of the Court is, that the allegations of the complaint are true, and that said defendant was a member of the company as to plaintiff Park, the finding supports a judgment for plaintiff. Park v. Hinds, 14 Cal. 415.

9. In suit on a note and mortgage-the answer not denying the execution thereof the decree recited, among other things, that the Court had duly considered the premises, and that "it appears from the note and mortgage sued upon, 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 $2,000;" it is ordered, etc.: Held, that this constitutes a sufficient finding of facts to support the decree-amounting, as it does, to an indirect finding of the substantial matters in the complaint, to wit: the execution and delivery of the note and mortgage. Holmes v. West, 17 Cal. 623.

10. In an action of ejectment against two persons, where one of the defendants had previously surrendered the possession of the premises to his codefendant, this fact is sufficient to support the finding of the Court, that the possession was in one and not in the other. Burke v. Table Mountain Water Co., 12 Cal. 403.

11. Insufficient findings.-When a motion is tried by the Court which involves an issue of fact, and the facts are neither found by the Court, nor a statement of facts agreed upon by the parties, although the judgment be taken by consent pro forma, and without prejudice, it cannot stand on appeal. Semple v. Benkey, 2 Cal. 321.

12. Where the declaration was upon a note, and there was but one count, and the Court found that the note was never given, but that the indebtedness of defendant to plaintiff was for merchandise sold: Held, that the finding was against the averment, and could not support this judgment. Lewis v. Myers, 3 Cal. 475.

13. The findings of a Court stating that the material allegations in plaintiff's

complaint and replication are true, and that the material allegations in defendant's answer are not true-where the complaint alleges in one count money lent, money laid out and expended by plaintiff for the use of defendants and for work and labor, and in the second count alleges an indebtedness upon an account stated-are defective and ground for reversal of the judgment on appeal. Breeze v. Doyle, 19 Cal. 101.

14. When finding not necessary.-There is no necessity of a finding as to a fact admitted by the pleadings. A finding is only required when the allegation of a material fact in the complaint is controverted by the answer so as to raise an issue. Swift v. Muygridge, 8 Cal. 445.

15. Law and fact to be stated separately.-The Court below, sitting as a jury, must find separately the facts and conclusions of law. A verdict insuffi

cient in this particular will be reversed. Brown v. Groves, 1 Cal. 111.

16. When, will not be reviewed on appeal.-The findings of fact in the Court below will not be reviewed on appeal, unless there was a motion for a new trial; and this, whether the case be in equity or at law, tried by a jury or by the Court. Gagliardo v. Hoberlin, 18 Cal. 394.

17. The Supreme Court will not review the findings of the Court below in an equity cause upon a question of fact, if the party objecting to the finding and appealing does not move for a new trial, and appeal from the order overruling the motion. Deputy v. Stapleford, 19 Cal. 302: Regla v. Martin, Id. 474.

18. Upon the trial of an issue of fact by the Court, the statement of facts must be made out and filed, as required by the one hundred and eightieth section of the Practice Act, or the appeal will be dismissed. Russell v. Amador, 2 Cal. 305.

19. An objection that the finding is qualified by the words, "as to plaintiff, Park," and that the facts showing this relation to him ought to have been found, should have been taken below, and cannot be raised for the first time on appeal. Park v. Hinds, 14 Cal. 415.

20. When a jury has been waived by the parties, and the Court find the facts, the facts so found have the same legal effect as if found by a jury, and not being the subject of review in this Court are therefore conclusive. Wheeler v. Hays, 3

Cal. 285.

See Statute cited under § 333, post.

21. Generally.-Where a cause is tried by a Judge alone, without a jury, the record must disclose a finding by him of the facts, and a statement of his conclusions of law upon the case. Hoagland v. Clary, 2 Cal. 474.

22. Without such finding and statement, there is no basis to support the judgment. Id.

23. A jury was waived by the parties, and the case submitted to the Court; the trial made some progress, when, on motion of plaintiff's attorney, the case was referred, "to ascertain the damages sustained by plaintiff :" Held, the case having been submitted to the Court, it was the duty of the Court to find upon the facts adduced by the parties, and not the facts presented in a referee's report. Geeseka v. Brannan, 2 Cal. 517.

24. The intention of the act is, that the decision of the Court upon the facts shall form the basis of the judgment in like manner as the verdict of a jury. Russell v. Amador, 2 Cal. 305.

25. This law is not merely directory, and the Court will not destroy or impair its efficacy. Id.

26. The finding of a Court, like the verdict of a jury, is a matter of record, and copies thereof may be sufficiently authenticated by the certificate of the Clerk. Reynolds v. Harris, 8 Čal. 617.

27. The finding of a Court, like a special verdict of a jury, must, taken in connection with the pleadings, support the judgment. Swift v. Muygridge, 8 Cal. 445. 28. The reasons given by a Judge in his findings are no part of the judgment. The point decided is the thing fixed by the judgment. Burke v. Table Mountain Water Co., 12 Cal. 403.

29. A special finding on the question of fraud should be always taken so as to keep it distinct from the main subject of controversy. Davis v. Robinson, 10 Cal.

411.

30. Where a jury is waived, and the cause tried by the Court, the Court should find the facts, and not merely state the proofs. Heredink v. Holton, 16 Cal. 103. 31. A Court cannot properly, even upon consent of parties, pass upon questions not raised by the written allegations of the pleadings. Boggs v. Merced Mining Co., 14 Cal. 279.

32. In ejectment against several defendants occupying different portions of the land sued for, some of whom answer and others make default, and none appearing on the trial, the Court may make a general finding and enter a joint judgment against all the defendants for possession of the land and costs. Lick v. Stockdale,

18 Cal. 219.

33. Defective findings, or absence of them, do not render a judgment a nullity; that only constitutes grounds for reversal on appeal. Breeze v. Doyle, 19 Cal. 101.

§ 181. Reference may be ordered, when.

On a judgment upon an issue of law, if the taking of an account be necessary to enable the Court to complete the judgment, a reference may be ordered.

CHAPTER VI.— Of references, and trial by referees.

SEC. 182. Reference ordered upon agreement of parties, in what

cases.

183. Reference ordered on motion, in what cases.

184. Number of referees, qualifications, etc.

185. Either party may object; grounds of objection.

186. Objections, how disposed of.

187. Referees to report within ten days-effect of how excepted to, etc.

§ 182. Reference ordered upon agreement of parties, in what

cases.

A reference may

dered upon the agreement of the parties, filed

A with the Clerk or entere i in the minutes: 1st. To tryment of the parties

any or all of the issues in an action or proceeding, filed wheter of fact or of law, and to report a finding and

Augment thereon; 2d. 1o ascertain a fact necessary to 1st. enable the Court to proceed and determine the case.

Jction or proceeding, whether of fact or of law; and to report a judgment thereon. 2d. To ascertain a fact necessary to enable the Court to proceed and determine the case.

1. Order of Court is necessary.-An order of Court is necessary to constitute a reference under the Code; and no reference would be good, as such, without an order. Heslep v. City of San Francisco, 4 Cal. 2.

2. An order of reference cannot go beyond the pleadings of the parties. Branger v. Chevalier, 9 Cal. 353.

3. A reference or arbitration, in which there is no order of Court or agreement filed with the Clerk or entered on the minutes, is a voluntary withdrawal of the case from the jurisdiction of the Court, by which it loses all control over the case, and has no authority to enter judgment upon the finding, except by consent of parties. Heslep v. City of San Francisco, 4 Cal. 2.