tive, if not waived, only with respect to the issue of compensation.-Vallejo & Northern R. R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238.

3. Issues triable by court.-The rule is that, in cases of eminent domain all questions, except those necessary to determine the compensation to be made to the owner for his property taken or damaged, are to be determined by the court.-San Joaquin & Kings River Canal & Irr. Co. v. Stevinson (Sup. Ct.), 26 Cal. App. 285, 147 Pac. 258.

4. This necessarily includes among the questions triable by the court without a jury the question whether the plaintiff's canal will unreasonably waste the water to be condemned, and the quantity necessary for the use, after allowing for unavoidable waste; also the question whether the water which the plaintiff already has acquired the right to take would be sufficient for its public use, if carried and distributed without unreasonable waste.-San Joaquin & Kings River Canal & Irr. Co. v. Stevinson (Sup. Ct.), 26 Cal. App. 285, 147 Pac. 258.

5. Issues triable by jury. The right to a trial by jury in condemnation suits is limited to the issue of compensation, and all other issues are to be tried by the court, and if the court submits them to a jury, it is nevertheless required to make findings either by adopting the verdict thereon or by making findings in its own language.— Vallejo & Northern R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238.

2.

Where an action is transferred to another department of the court before the same judge, an order in that department placing the cause on the calendar for trial on a specified date is in effect a resetting of the cause for trial, and if made without the knowledge of an intervener, a further trial can not be had in his absence without giving him the five days' notice required for section 594 of the Code of Civil Procedure. -Hagenkamp v. Equitable Life Assur. Co., 29 Cal. App. 713, 156 Pac. 520.

3. The provision of section 594 of the Code of Civil Procedure that either party may bring an issue to trial provided that if the issue tried is an issue of fact, proof must first be made to the satisfaction of the court that the adverse party has had five days' notice of such trial, has reference only to proceedings taken against a party in his absence, and has no application to a case in which both parties are represented and present when the case is called for trial.Handy v. Handy, 31 Cal. App. 590, 161 Pac. 21.

4. The defendant in an action is not entitled to a postponement of the trial on the ground that he had not received a full five days' notice of the time fixed for the trial, where he is present in court when the case is called and fails to file any affidavit setting forth the reasons why he is unable to proceed, or why his witnesses were not present, or who they were, or what they would testify to if present.-Handy v. Handy, 31 Cal. App. 590, 161 Pac. 21.

§ 595.

MOTION TO POSTPONE.

1. Absence of defendant.

2. To procure evidence.

3, 4.

1. error

to refuse to postpone the trial because of absence of a defendant through illness when no relief was asked against such defendant and counsel had stated to the court that the purpose of her being present was to give evidence upon the question of fraud, which was not before the court on the issues raised by the pleadings. -Greenlee v. Los Angeles Trust etc. Bank, 171 Cal. 371, 153 Pac. 383.

2. To procure evidence.-No abuse of discretion is committed in denying the motion of the defendant for a continuance for the purpose of procuring evidence, where the affidavits on which the motion is based do not state facts which furnish any definite and satisfactory assurance that the witnesses named therein could or would be procured at a later time if the continuance were granted.-People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812.

3. -Of insanity of accused.-An application for the postponement of a criminal trial to enable the defendant to obtain evidence relating to his alleged insanity is properly denied, in the absence of any showing of the exercise of any diligence in searching for evidence, or the ability to procure it if the continuance were granted.-People v. Loomis, 170 Cal. 347, 149 Pac. 581.

4. The question as to whether or not the statements contained in the affidavit offered in support of the motion for a continuance are of such a character as to raise a doubt of the defendant's sanity at the time of trial, and to cause the court to suspend the proceedings and call a jury to determine the present sanity of the defendant, is a matter addressed to the discretion of the trial court, whose decision must be upheld in the absence of a showing that such discretion has been abused.-People v. Loomis, 170 Cal. 347, 149 Pac. 581.

§ 607.

1. Reopening of case -Discretion of court. It is within the discretion of a trial court to reopen a case after the close of the evidence.-Phenegar v. Paolini, 27 Cal. App. 381, 149 Pac. 1008.

§ 608.

1.

Instructions.-A litigant is entitled to proper instructions bearing upon any legitimate legal inference which may be drawn from evidence given; he is not limited in this right to instructions addressed only to the positive evidence in the case.-Thomas v. Visalia Elec. R. Co., 169 Cal. 658, 147 Pac. 972.

2. Argumentative instructions to a jury are not permissible and should never be given. People v. Horn, 25 Cal. App. 583, 144 Pac. 641.

3. Either party has the right to have an instruction given to the jury based upon his theory of the case, if there is any evidence to support it.-Klamath Lumber Co. v. Co-operative Land & Trust Co., 25 Cal. App. 678, 145 Pac. 159.

Where in an action by an attorney to recover for services rendered to the defendant in and about the prosecution of a certain action, it is found in answer to a special interrogatory submitted to the jury, that the plaintiff was to charge a reasonable fee only and that it should be left to the defendant to fix the amount thereof, an answer to a further interrogatory that the defendant in fixing such fee did not "act in good faith, and upon and after full consideration, and on advice of those persons whom he had a right to believe and expect were qualified to advise him in said matter," is not subject to the interpretation that the defendant in fixing the fee did not act in good faith, in that he did not seek the counsel of qualified advisers, but is to be interpreted as an unqualified finding that in fixing the fee the defendant acted in bad

faith.-Foster v. Young, 172 Cal. 317, 156 Pac. 476.

§ 625.

1. Effect of general verdict.-A complaint that the court reversed the requirements of this section (as it existed at the time of the trial) by requiring answers to the special issues whether the jury found a general verdict or not is immaterial, and the error harmless where the jury found a general verdict and also answered the special interrogatories.-Law V. Northern Assur. Co., 165 Cal. 394, 132 Pac. 590.

2. Where a verdict is general in its terms, and consequently covers every issue in the case, it must be upheld if it finds support in the evidence adduced upon the whole case.-Merrill v. Kohlberg, 29 Cal. App. 382, 155 Pac. 824.

3. Framing interrogatories.-In framing special interrogatories the court in the interest of simplicity should prevent the possibility of long, argumentative and possibly irresponsive answers, and this may sometimes be done by framing the questions SO that they may be answered "Yes" or "No."-Law v. Northern Assur. Co., 165 Cal. 394, 132 Pac. 590.

§ 632.

DECISION ON TRIAL BY COURT.

1. As to necessity for.

2. As to what constitutes.

3. Inconsistency between formal and oral findings, effect of.

1. As to necessity for.-Until the decision has been entered on the minutes, or reduced to writing by the judge and signed by him, and filed with the clerk, the case has not been tried in legal intent.-San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

2. As to what constitutes.-The opinion of the court, expressed from the bench in deciding a case, is no part of the decision. In the formal findings of fact and conclusions of law are to be found the only legal expression of the views of the court.-San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

3. Inconsistency between formal and oral findings, effect of.-Where the court some six weeks after the submission of the case delivered an opinion wherein he summarized the important facts, and the formal findings, signed two or three months later, did not in all respects accord with the views of the first opinion, the formal findings can not be subordinated or controlled by the former opinion. No antecedent expression of the judge, whether casual or cast in the form of an opinion, can in any way restrict his absolute power to declare his final conclusion in the only manner authorized by law, which is under this and the following. section. Scholle v. Finnell, 173 Cal. 372, 159 Pac. 1179.

§ 633.

FINDINGS AND CONCLUSIONS.

1. As to responsibility for findings. 2-5. Construction of findings. 6-8. Necessity for findings.

9-12. Where no finding on material issue, effect.

1.

As to responsibility for findings.-The court is itself responsible for the findings. (Shaw, J., concurring.) Estate of Friedman, 171 Cal. 431, 153 Pac. 918.

2. Construction of findings. - Findings "that all of the denials and allegations contained in the answer of the defendants to said third amended complaint are, and that each of them is, supported by the evidence and true," is an unusual form of expression, but its meaning is clear and unequivocal and is equivalent to a finding that each allegation of the complaint is untrue.-Fritz v. Mills, 170 Cal. 449, 150 Pac. 375.

3. A finding that all of the allegations in the answer are not true is not a finding that all of them are untrue, or that any particular one of them is untrue, as such finding does not negative the fact that some of them are true.-Auerbach v. Healy, 174 Cal. 60, 161 Pac. 1157.

4. Where a finding is of the evidence and not of the fact in issue, it will not aid the judgment unless the evidentiary facts thus determined carry with them by necessary implication the ultimate fact which should have been determined.-Nichols v. Wolf, 27 Cal. App. 1, 148 Pac. 799.

from They

5. Findings can not be detached each other and considered piecemeal. must be considered and construed as a whole, and not merely according to their numerical subdivisions.-Brown V. Fuller & Co., 28 Cal. App. 676, 153 Pac. 960.

6. Necessity for findings.-Where an action is tried upon a stipulated statement of facts, it is not necessary that specific findings be made upon the matters in issue.Stanwood v. Carson, 169 Cal. 640, 147 Pac. 562.

7. The judgment itself controls and if the findings support the judgment, the mere absence or omission of a specific conclusion of law will not avail to defeat a judgment otherwise properly given. Indeed, it will be held that the conclusion of law is at once embraced and expressed in the mandate of the judgment.-Takekawa v. Hole, 170 Cal. 323, 149 Pac. 593.

8. Although the judge announces orally from the bench his conclusion as to the questions of use and necessity in condemnation proceedings, this is in no legal sense equivalent to findings which the law requires him to make and which are not made until after the jury has rendered their verdict. San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

9. Where no finding on material issue, effect. Where the trial court finds in favor of the defendant as to one of the counts in the complaint, he can not complain of the absence of findings as to issues raised in

that count.-Luchini v. Roux, 29 Cal. App. 755, 157 Pac. 554.

10. In findings of fact the omission to find in expressed terms that the defendant was negligent will not defeat the judgment, if the facts found show an omission of duty with a resultant injury.-Cooley v. Brunswig Drug Co., 30 Cal. App. 58, 157 Pac. 13. 11. If any material issue is left found, it is ground for reversal of judgment.-Math v. Crescent Hill Gold Mines Co., 31 Cal. App. 636, 161 Pac. 140. 12.

un

In an action for services performed in working in a mine, where the defendant files a cross-complaint in which it is alleged that the plaintiff is indebted to the defendant for money loaned and for goods and merchandise furnished and delivered to the plaintiff, at the latter's special instance and request, in a certain sum, and the plaintiff in his answer to the cross-complaint denies the indebtedness, and evidence is admitted upon the issue, the failure to make a finding upon the issue requires a reversal of the judgment.-Math v. Crescent Hill Gold Mines Co., 31 Cal. App. 636, 161 Pac. 140.

§ 634.

WAIVING FINDINGS.

1. Construction of section. 2, 3. Amendment of 1913.

4, 5. Failure to serve copy of prepared findings, effect.

Construction of

1. section.-Service of proposed findings pursuant to section 634 of the Code of Civil Procedure, as amended in 1913, is not required in a case where no direction is made that findings be prepared. --Hoffman v. Rush Co., 27 Cal. App. 167, 149 Pac. 177.

2. -Amendment of 1913.-The amendment of 1913 has not changed the rule that a superior court judge presiding outside his own county has the power to settle and sign the findings in the county of his residence. -Weinstock-Nichols Co. v. Courtney, 26 Cal. App. 445, 147 Pac. 218.

3. The amendment to this section was passed solely in the interests of parties litigant, to give them an opportunity to suggest to the trial judge, before signing findings, certain matters they desired to have incorporated. The amendment was not enacted for any public reason and the provisions may be waived by a party litigant.-California Cent. Creameries Co. V. Crescent City L. W. & P. Co., 30 Cal. App. 619, 159 Pac. 209.

4. Failure to serve copy of prepared findings, effect.-A judgment is not void on its face by reason of the failure of the party directed to prepare findings to serve a copy of the proposed findings upon all other parties at least five days before the findings are signed.California Cent. Creameries Co. v. Crescent City L. W. & P. Co., 30 Cal. App. 619, 159 Pac. 209.

5. An order directing the preparation of findings is not a part of the judgment-roll, and, therefore, an inspection thereof would

not disclose that such direction was given. -California Cent. Creameries Co. v. Crescent City Co., 30 Cal. App. 619, 159 Pac. 209.

§ 638.

1.

Referee, judge pro hac vice.-Where the stipulation of the parties, in conformity with which an order of reference is made, authorizes that officer not only to take the evidence, but to report his "findings of fact and conclusions of law" thereon, with no provision either in the stipulation or the order for a review by the court of his rulings on evidence or on matters of procedure, the reference is something more than the ordinary reference to a master in a suit in equity. It constitutes the referee a judge pro hac vice, with power as ample for the conduct of the trial and rulings on all questions arising therein, excepting only for entry of judgment, as if the cause were being tried by the court itself; and the report or determination of such an officer is not subject to be set aside by the court, except for a want of evidence to sustain his findings or manifest error in his conclusions of law.-United States v. United Surety Co., 226 Fed. 985.

a

2. A reference, by consent of parties, of an entire case for the determination of all its issues, though not strictly a submission of the controversy to arbitration-a proceeding which is governed by special rulesis a submission of the controversy to tribunal of the parties' own selection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law. Its findings, like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed under the reservation contained in the

consent

and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise.-United States v. United Surety Co., 226 Fed. 985.

§ 645.

1. Objection to report, etc., of referee.— Objections that the report, findings and conclusions of the referee are not sustained by the evidence, and that the report goes beyond the scope of the order of reference, should be presented to the trial court, and where not so urged, they can not be presented for the first time on appeal.-Clark, Wise & Co. v. Hauschildt, 28 Cal. App. 47, 151 Pac. 149.

§ 648.

1. Suffielency of objection.-Where the defense of want of consideration rests upon the allegation of a conclusion of law, the objection thereto made after the trial of the case upon the merits will not be considered upon an appeal supported only by a record which does not show that such objection was interposed by demurrer or otherwise in the court below.-Rivera v. Cappa, 29 Cal. App. 497, 156 Pac. 1017.

2. An objection so general as not to call the court's attention to the particular aspect in which the question is claimed to be obnoxious will not be regarded as sufficient to entitle one to have the exception reviewed.-Aston v. Examiner Printing Co., 226 Fed. 496.

$649.

1.

Excuse for not presenting in time.Upon an appeal taken from an order denying a motion to tax costs, the trial court is not justified in refusing to settle the bill of exceptions to be used on the appeal, on the ground that it was not presented in time, where no notice of the order denying the motion was given to the appellant, except by a letter mailed to counsel for appellant by counsel for the opposing party demanding payment of the costs.-East Side Canal & Irr. Co. v. Superior Court, 30 Cal. App. 528, 158 Pac. 773.

§ 650.

1, 2. As

BILL OF EXCEPTIONS.

to preparation and settlement generally.

3. Construction of section.

4, 5. Authentication and certification. 6-13. Delay in service of, effect. 14-17. Settlement of bill.

18-20. Record, contents of.

1. As to preparation and settlement generally. Appellant is entitled to notice of entry of an order denying relief from a default judgment, and the failure to give such is not excused from the fact of the pres

ence of counsel in court during the argument of the motion.-Hughes Mfg. & Lumber Co. v. Elliott, 167 Cal. 494, 140 Pac. 17. 2. The insufficiency of the evidence to sustain the findings can not be considered on appeal from an order denying a new trial, where there is no particular specification in the bill of exceptions which points out the weakness of the testimony as to any of the facts in issue.-Tingey v. Callahan Construction Co., 28 Cal. App. 777, 154 Pac. 28.

3. Construction of section. A sufficient compliance with sections 650 and 659 of the Code of Civil Procedure in preparing

and presenting a statement of the case on a motion for a new trial, is had where the moving party leaves his proposed statement with the clerk and the adverse party thereafter likewise leaves his proposed amendments thereto, and the judge subsequently receives all of the papers, either from the clerk or from the judge in whose place he presided at the trial, and thereupon in open court fixes a day for the settlement of the statement in the presence of both counsel, notwithstanding the failure of the moving party to give the notice of intention of presentation of the statement to the judge as provided by such sections.-Keating v. Keating, 169 Cal. 754, 147 Pac. 974.

4. Authentication and certification. Where upon an appeal from an order denying a motion for a new trial the notice of intention to move for a new trial has not been authenticated, the order can not be reviewed, even though the notice is printed in the transcript.-Lincoln County Bank V. Fetterman, 170 Cal. 357, 149 Pac. 811.

5. Upon an appeal from a judgment foreclosing a mortgage, intermediate orders and papers included in the record not certified to by the trial judge can not be considered. -Dietz v. Scott, 27 Cal. App. 320, 149 Pac. 775.

6. Delay in service of, effect.-Written notice of entry of order denying a motion for a new trial is waived by the making of an application for an order setting aside the order denying the motion on the ground of excusable neglect of counsel, and a proposed bill of exceptions not served within ten days after the making of such application is too late, in the absence of any order extending the time of such service.-Fighiera v. Dewhirst, 32 Cal. App. 245, 162 Pac. 655.

7. The mere pendency of a motion by appellant to amend the findings, subsequently made, could not operate to extend the ten days given herein within which to serve his bill.-Hole v. Takekawa, 165 Cal. 372, 132 Pac. 445.

8. Delay in serving a bill of exceptions may be cured by the voluntary consent and waiver of the parties not served.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

9. A bill of exceptions which has not been served upon some of the parties may be considered with a view to the modification of the judgment so far as the rights of those parties not served are not affected.Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

10. A bill of exceptions, even though not served upon certain adverse parties, may be considered and the judgment modified in so far as such modification may be ordered without impairing the rights of the parties not served.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542. 11. The failure to make timely service of the bill of exceptions to be used on a motion for a new trial does not affect the jurisdiction of the subject-matter, and such delay may be cured by the voluntary consent and

waiver of the parties not served.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

12. An appeal taken by the heirs of a deceased incompetent from an order settling the final account of the guardian of his estate will not be dismissed because of the failure of the appellants to serve upon the administrator their proposed bill of exceptions, or a copy of the engrossed bill, or a copy of the transcript on appeal.-Estate of Clanton, 171 Cal. 381, 153 Pac. 459.

13. Upon an appeal from an order denying a new trial, the objection can not be raised for the first time that the bill of exceptions used on the hearing of the motion was not served within the time allowed by law, where the respondent proposed amendments to the bill, and raised no objection at the time of its settlement.-Lantz v. Cole, 172 Cal. 245, 156 Pac. 45.

14. Settlement of bill.-It is error upon an appeal taken from a judgment entered by the clerk upon the verdict of the jury in an equity case before the signing and filing of findings of fact and the rendition by the court of any judgment therein, to direct the insertion in the bill of exceptions of the ex parte order made subsequent to such judgment vacating the same, the findings of fact and conclusions of law and the judgment based on such findings, for the same are immaterial to such appeal, and, being so, mandamus will not lie to compel the striking of the same from the bill of exceptions.-Holland v. Superior Court, 169 Cal. 361, 146 Pac. 878.

15. A statement on motion for a new trial, settled by a judge other than the one who presided at the trial, will not be refused consideration on appeal because of the failure to recite why the statement was not settled by the latter judge, since the presumption of regularity attending official acts of courts and their judges is sufficient to support such action.-Lincoln v. Sibeck, 27 Cal. App. 61, 148 Pac. 967. 16.

Ordinarily the burden is cast upon the proponents of a bill of exceptions to bring the matter of its settlement to hearing and determination even after the proponents of the bill have left it with its amendments with the clerk for the judge.Slye v. Hunt, 29 Cal. App. 117, 154 Pac. 607. 17. Where upon the hearing of the settlement of a bill of exceptions upon a motion for a new trial, the trial judge after the matter of the settlement had proceeded for some time requested counsel for both sides to confer and attempt to agree on certain of the amendments, and report to him as to what could not be agreed upon, and the further hearing of the matter was continued until such report, the court is not justified four months thereafter in refusing to settle the bill on the ground of laches; under such circumstances the judge constituted counsel for both parties as in a sense his aids in the duty which was primarily his own, and by so doing invested each with the responsibility of reporting back to him