Estate of Lucas v. Brown

SCHAUER, J.

I concur in the judgment, and in the opinion generally, but feel that a further answer should be made to appellant’s contention that “the order approving and settling the final account of the respondent is defective in that there are . . . [no] findings upon the issues of fact raised by his objections to the final account.” Issues of fact as to the bona tides of the mortgage claim, the asserted extension of the mortgage, the compromise of the claim, and the conduct of the county counsel, etc., were raised by such objections and were tried by the court without a jury, and therefore *469findings of fact were required unless waived by the parties. (See Prob. Code, sec. 1230; Code Civ. Proc., sec. 632; Estate of Dodds (1942), 52 Cal.App.2d 287, 288 [126 P.2d 150].)

This appeal was initially taken upon the judgment roll alone. The record has since been augmented by the filing, upon stipulation of the parties, of what is designated “Clerk’s Supplemental Transcript.” Such supplemental transcript does not purport to be a complete transcript of the proceedings in the case and, in fact, is limited to matters specifically enumerated in the stipulation for the filing thereof. Therefore, for the purposes of the question which we are considering, the effect is the same as though the appeal were upon the judgment roll alone. There is in the record no affirmative showing as to whether findings were or were not waived. Under such circumstances we must presume that they were waived. It was stated in Carpenter v. Pacific Mut. Life Ins. Co. (1937), 10 Cal.2d 307, 326 [74 P.2d 761], “From an early date it has been held in this state that on a judgment roll appeal the mere nonappearance of findings where required by statute does not necessarily establish error. . . . Where findings do not appear, and are required [,] on a judgment roll appeal it will be conclusively presumed, in the absence of a proper record showing the contrary, in support of the judgment, that such requirement was waived.” (See, also, Leadbetter v. Lake (1897), 118 Cal. 515 [50 P. 686]; Bank of Italy v. Bettencourt (1932), 214 Cal. 571, 575 [7 P.2d 174].)

Carter, J., concurred.