(dissenting). The only point decided by the court is upon the question of practice, and the conclusion is that the case should be reversed and remanded to the district court in order that findings of fact may be made.- No attempt is made by the court to pass upon the many other questions presented by appellant’s brief, and I presume that, in the natural sequence of events when the findings are made by the court and judgment entered upon such findings, the case will then come again to this court for a review of the other questions, already briefed and presented.
The effect of the opinion in this case is to establish the practice in this jurisdiction that in every case in which evidence is introduced the court must make findings of fact, although under the evidence: in the case no question of fact is presented for determination. The statute provides (section 4197,. Code 1915) :
“Upon the trial of any question of fact by the court, its; decision must be given' in writing and filed with the clerk ini the cause, and in such decision the court shall find the facts and conclusions of law pertinent to the case. * *”
The error in my judgment in the majority opinion is" in the assumption that, when the court passes, upon a demurrer to the evidence, it thereby is trying a question of fact. For if such be the effect of the action of the court on the demurrer, such action in a law case would be a clear invasion of the province-of the jury, because by both the Constitution and statute the jury is made the exclusive trier of questions of fact. The only authority cited for the conclusion is the case of Luna v. Cerrillos R. R. Co., 16 N. M. 71, 113 Pac. 881, but that case is clearly not in point, for there no demurrer to the evidence was. interposed, and in deciding the case the court was. passing upon a question of fact, where under the statute his mandatory duty was to make findings of' fact if so requested. There is a wide distinction indeed between the duty and province of the court in passing upon a demurrer to the evidence and in deciding a disputed question of fact upon a conflict in the evidence. In passing upon a demurrer the court does not weigh the evidence. A demurrer to the evidence admits all facts which the evidence-tends to prove, or of which there is any evidence, however slight, and all inferences which can be logically and reasonably drawn from the evidence, and no regard is to be paid by the court to the evidence in favor of the demurrant. That is to say, if there is conflict in the evidence, the conflict is to be resolved in favor of the party against whom the demurrer is interposed, and no heed is to be given by the court to any evidence favorable to the party interposing the demurrer. By interposing a demurrer the party so doing withdraws from the consideration of the court all evidence offered by him, and admits as true whatever facts the evidence adduced by the opposite party tends to prove, and all reasonable inferences! which may- be drawn therefrom, and asks for a decision of the law upon such admitted facts. This statement of the effect of a demurrer to the evidence is amply sustained by the authorities, and I know of no authority to the contrary. I cite in support of it Lake Shore & Michigan Southern Railway Co. v. Foster, 104 Ind. 293, 4 N. E. 20, 54 Am. Rep. 319, and authorities there collected; Pawling v. U. S., 4 Cranch. (U. S.) 219, 2 L. Ed. 601, 2 Tidd’s Prac. 865; Copeland v. New England Ins. Co., 22 Pick. (Mass.) 135. See, further, Century Digest, vol. 46, under the subject of Trial, Key-Nos. 355, 356, where many authorities will be cited, all to the effect that in passing upon the demurrer the court does not weigh the facts, but simply decides as a matter of law whether the evidence, assuming it to be true, warrants a judgment or verdict for the plaintiff, or the party against whom the demurrer is interposed. This being true, in passing upon the demurrer the court is not passing upon a question of fact, but of law. It is like the court, for example, passing upon a demurrer to the complaint. All the facts alleged in the complaint are to be taken as true, and so doing, the court determines as a matter of law whether the facts stated would entitle the plaintiff to recover. The majority-opinion says that—
“Although the demurrer to the evidence may for some purposes be held to amount to an admission of the facts which it tends to establish, that admission goes only to the extent of furnishing a rule for determining what the facts in the case are. The court under such circumstances may well assume that the facts shown are true, but this principle does not reach the question at hand. The question is, what are the facts, and what legal conclusion should be drawn from them? To have the court show by the record these matters is a statutory right in all cases tried to the court, and the district court must, when properly requested, comply with the provisions of the law.”
I think the majority opinion by this quoted statement contemplates that, after ruling on the demurrer and deciding it either for or against the de-murrant, the court would thereupon be required to determine as an original question the weight to be attached to the evidence in the case. In other words, assuming that there was some conflict in the evidence and the defendant demurs thereto, which demurrer is overruled upon the assumption by the court, and the necessary admission by the defendant, that the evidence favorable to the plaintiff was true, as well as all reasonable inferences to be drawn therefrom, that the court must then weigh the evidence and give judgment for or against the plaintiff, not upon the demurrer, but upon the weight he gives to the evidence for and against the plaintiff. This appeals to me as a novel proposition indeed. If such be the rule, then the interposition of a demurrer to the evidence is a useless formality, and settles and determines nothing. For after ruling upon it, the court and the parties are in exactly the same situation' as though the case was submitted to the court upon the evidence for determination. In the case of Lake Shore & Michigan So. Ry. Co. v. Foster, 104 Ind. 293, 4 N. E. 20, 54 Am. Rep. 319, the court said:
“In passing upon a demurrer to evidence, the court is called upon to rule upon a question of law, and hence there must he no conflict as to the evidence. If a party seeks to make available a conflict in the evidence as to any fact, he must go to the jury or to the court sitting as a trier of the facts. If he resorts to a demurrer to the evidence, he thereby withdraws all evidence in conflict with the evidence which tends to establish a fact in favor of the other party.”
I concede that under the modern practice a de-murrant may demur to the evidence and invoke the ruling of the court, and, upon such ruling being adverse to him, waive the demurrer and introduce evidence. But such is not the case here, as the parties elected to stand upon the demurrer, the effect of which was to invoke the judgment of the court on the admitted facts, and thus secure the right to a review in this court upon the propriety of the action .of the court in overruling the demurrer. If it would be incumbent upon the court to find the facts in writing after overruling the demurrer, the same rule would necessarily require a finding of facts where the demurrer was sustained and what, I ask, would be the result if the facts found should disagree with the evidence, the truth of which was necessarily admitted by the defendant? In case a stipulation of facts is filed in a case and a finding is made, which all the authorities hold not required, and the finding-conflicts with the stipulated facts, the rule is that the stipulation controls. Seward v. Rheiner, 2 Kan. App. 95, 43 Pac. 423.
It appears to me that we would have an anomalous situation presented, in an action at law by a jury, where upon the conclusion of the plaintiff’s case the defendant should interpose a demurrer to the plaintiff’s evidence. The court for example sustains the demurrer. Could it be contended that nevertheless' there wquld be an issue of fact in the case for the jury to pass upon? If not, would there be an issue of fact in the case for the jury to determine if the court should overrule the demurrer and the defendant should elect to stand upon the ruling? Would it then become essential for the court to submit the _ case to the jury to pass upon the facts, and what would be the result if the jury should disagree with the court, and hold that the evidence, if true, did not warrant a recovery for the plaintiff? Many cases might be cited to the effect that findings are unnecessary upon a judgment of dismissal or nonsuit, or where the parties stipulate as to the facts in the case, or where a case is submitted upon an agreed statement of facts. The cases may be found in notes to 8 Standard Ency. of Proc. pp. 998, 999, and these cases were decided under statutes in substance and effect like our section 4197. As in my judgment the court in passing upon the demurrer and later entering judgment on its ruling thereon was not trying a question of fact, but one,of law, for which reason it was not required by the statute in question to make findings of fact, I dissent from the majority opinion.