(dissenting). This ease goes off on a question of practice, and I dissent from the opinion of the court on that question.
The language of our Code of Civil Practice (section 5837, Sand. & H. Dig.) is as follows, to-wit: “Upon trials of questions of fact by the court, he shall state in writing the conclusions of fact found, separately from the conclusions of law.”
It must be confessed that, were it not for the interpretation of this language given in a long and unbroken line of decisions, the same would appear to be very ambiguous. But these adjudications establish the fact that a statement of the conclusions of fact, as here used, means the same as is commonly known as a special finding of fact, in contradistinction to a general finding of fact, and this idea is emphasized by the expression, “separately from the conclusions of law.” A concise statement of the principle, with numerous references and explanatory-notes, is to be found in the Encyclopedia of Pleading and Practice, vol.- 8, pp. 932 .et seq., under the heading “Findings of Court.” In order that it may be understood what are the special findings of fact, and how full they are- required to be in the court’s essential statement of the same, it may be well to say what the courts therein referred to say on the subject, namely: “A special finding is. a statement of the ultimate facts on which the law must determine the rights of the parties.” Anderson’s Law Dictionary. In Norris v. Jackson, 9 Wall. 127, Mr. Justice Miller in delivering the opinion of the court, said: “This special finding has often been considered and described by this court. It is not a mere report of the evidence, but a statement of the -ultimate facts on which the law of the ease must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest.”
This finding of fact by the court is considered in somewhat the same light as is the special verdict of the jury, and the question there is whether the facts thus found require a verdict for the plaintiff or defendant. That is to say, the statement should be full enough that the court can determine the sufficiency of the facts therein stated to sustain the verdict rendered for the plaintiff or defendant, as the case may be. The same rule is applicable to findings of fact by the court, when trying a case as a jury, so that the appellate or reviewing court can determine from the court’s statement of facts whether or not its judgment thereon is sustained by the facts.
Having thus arrived at the true technical meaning of the language of our code on the subject, our next inquiry is, whether this statement of facts is mandatory upon the trial court, or is to be made only when requested by one or both of the parties, or may be made or not at the pleasure of the trial court? In Kentucky and other states where the code provision is different from ours, the court is required to make the statement of facts only when requested to do so by one or both of the parties, but it is useful to us to hear what the court of appeals of that state has to say in construing their own code provision. In Owensboro v. Wier, 95 Ky. 158, the court said: “But, say the appellees with earnestness, there was no statement by the court of its conclusions of fact found, separately from its conclusions of law.” Section 332 of the civil code provides that ‘upon trials of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.’” The difference between the Kentucky code and our code on the subject is, in Kentucky the court must make the statement of its findings only when asked to do so by one of the parties, while with us there is no such conditional, requirement, but the language of our court imports the same absolutely as does the language of the Kentucky code, after the court has been requested by one of the parties to make the statement of facts; and, upon this request being made, the requirement becomes mandatory upon the court (Briggs v. Eggan, 17 Kas. 590; Major v. Major, 2 Kas. 337; Ulrich v. Ulrich, 8 Kas. 402; St. Louis, etc. Ry. Co. v. Piper, 13 Kas. 505; Gest v. Kenner, 7 Ohio St. 75; Cleveland, etc. Ry. v. Johnson, 10 Ohio St. 591; Thompson v. Russell, 1 Oklahoma, 227); and a judgment will be reversed for a refusal to grant such right (Evans v. Kappes, 10 Iowa, 586; Stansell v. Corning, 21 Mich. 242; Ogden v. Glidden, 9 Wis. 46). The rule in Kentucky is also the rule in Indiana, Iowa, Kansas, Michigan, Tennessee and Wisconsin, and perhaps some other states.
In states with code provision like ours, a failure of the court to make a separate statement in the findings is regarded as reversible error. Emeric v. Alvarado, 64 Cal. 603; Burger v. Baker, 4 Abb. Practice Reports, 11; Harris v. Hay, 111 Penn. St. 564.
In some cases special findings are said to be unnecessary, and among these instances is named that of a trial upon an agreed statement of facts; but in this last instance the broad statement is misleading, for, as is said in Laveaga v. Wise, 13 Nev. 296: “When the statement and recitals in the judgment show that there was no trial of any issue of fact, that no findings of fact were filed, and that the facts were settled by stipulation, the pleadings and stipulation are held to stand in the place of the findings, and authorize the court to consider the question whether or not the judgment is supported by the facts agreed upon.” So, it seems that an agreed statement of facts by the parties does not excuse the court from the duty of stating his findings, but only relieves him of the burden of making another statement of facts than that made by the parties, which he is, in such cases, required to use in the place of his own statement, if he does not choose to make a statement for himself. In South Carolina this requirement of a statement of facts is not mandatory, but that is the only state in which it is not, in one way or another.
The constitution of this state of 1868 made it expressly mandatory upon the judges trying cases, but that provision was left out (not repealed) by the adoption of the constitution of 1874. But the code provision on the subject, made to conform to the provision of the constitution of 1868, is still retained.
It is evident, I think, from the authorities, and they are too numerous to even cite, that the statement of facts is mandatory upon the judges trying cases, sitting as juries. But this does not mean that the party aggrieved by the decision may not take his bill of exceptions, including a fuller statement of the evidence than is given by the court in its statement of the facts, and appeal; nor does it mean that the aggrieved party is precluded from taking his bill of exceptions, where the court makes no findings at all. But all that is meant to be said, and all that is necessary to be said here, is that it is the mandate of the law that the trial judge should have made and filed as part of the record his special findings of fact, and, neglecting to do this, he should have remedied the error by a favorable response to the petition for the nunc pro tunc order, for that is just what the court said he could and should do in the case of Nathan v. Sloan, 34 Ark. 524. And in case he would not or could not do this, where applicant is at no fault, as in this case, I think the judgment should be reversed and set aside, as having nothing upon which a judgment could be based; following the rule laid down in Pennsylvania. Harris v. Hay, supra; Sweigard v. Wilson, 106 Penn. 213; Commonwealth v. Equitable Beneficial Association, 137 Pa. St. 412.
The Code of Pleading and Practice had for its principal object a simplifying of the system of judicial procedure, and one of these reforms, in my opinion, consisted in narrowing down as much as possible the uses and necessity of bills pf exceptions; and to accomplish that end it becomes necessary to make as many things matters of record primarily as possible. In trials before juries, bills of exception, in the very nature of things, are essential to bring up the evidence and make it a part of the record, and to make part of the record in each case many things that would incumber the record proper; but it is a troublesome, cumbersome and unsatisfactory method at best, and a due consideration for the provisions of the code, and a more generous construction and application, I am sure, would greatly simplify things, and be more satisfactory.-
I am aware that this court has said that the only way to bring an agreed statement of facts before this court is by bill of exceptions. That is true, if the trial court does not adopt it as its own finding of fact, but it should do the latter or make a finding of its own.