BLUMENTHAL v. ASAY.

[FEBRUARY 10, 1877.]

WHEN A JURY IS WAIVED AND A CAUSE IS TRIED BY THE JUDGE, THE RECORD MUST DISCLOSE A FINDING by him of the facts; with a statement of his conclusions of law. If no such findings are made, there is nothing to support the judgment.

APPEAL from the second district court. The opinion states the facts.

Presly Denny, for the appellant.

W. C. Hall, for the respondent.

No briefs on file.

EMERSON, J.:

A jury having been waived, the case was tried by the court, but the court failed to file any findings as required by section 180 of the practice act. This is assigned as error. The record in this case affirmatively shows that no findings were filed.

When a jury is waived, and a cause is tried by the judge alone, the record must disclose a finding by him of the facts. and a statement of his conclusions of law. If this is not done, there is nothing to support the judgment, and it will be reversed on appeal.

Other points in the case are not brought into the record by a statement on appeal, and are therefore not considered. by the court.

The judgment of the court below is reversed and the case remanded for a new trial, the appellant to recover the costs on this appeal.

SCHAEFFER, C. J., and BOREMAN, J., concurred.

INDEX.

ACCOUNT.

1. ACCOUNT STATED, WHAT CONSTITUTES-Effect oF.-Where the parties to

an account, after an examination of it have expressly agreed upon a certain
sum of money as the balance justly due from one to the other, then such
account becomes an account stated, the effect of which is to establish
prima facie the accuracy of the balance found due without other proof,
and an action thereon is not founded upon the original items of the ac-
count, but upon the balance ascertained by the mutual accounting of
the parties. Benites v. Hampton, 369.

2. ID.-IMPLIED FROM CIRCUMSTANCES.-It is not necessary in establishing an
account stated to show an examination of and an agreed balance due
upon the account, but where it is presented for payment by one party
thereto to the other, who, when a reasonable time has elapsed after its
receipt, makes no objection thereto, it may be legitimately presumed
that he was satisfied with the account as presented, which presumption
takes the place of an express assent thereto, and the same becomes an ac-
count stated. Such presentation may be by mail. Under such circum-
stances, however, the person sought to be charged must in terms be a
party to the account, or the grounds upon which it is sought to hold him
as a debtor should be clearly made known to him and a demand for pay-
ment made, otherwise no presumption arises from his silence in relation
thereto. Id.

3. ID. CIRCUMSTANCES INSUFFICIENT TO ESTABLISH AN ACCOUNT STATED.-
Plaintiff sued three defendants, Bicknell, Morrisson, and Hampton, as
constituting the partnership firm of Bicknell, Morrisson & Co., upon
account stated. H. only answered. B. and M. had been partners
up to July 1, 1875, when H. entered the firm, agreeing to become respon-
sible with B. & M. for all debts then existing. The account offered in
evidence was headed "Bicknell & Morrisson, in account with L. Benites,"
and contained a large number of items, some charged up before and some
after H. entered the firm, showing a balance of one thousand six hun-
dred and sixty-three dollars and seventy cents; one item was as follows:
"June 30, 1875, to balance on settlement, charged to Bicknell, Morris-
son, and Hampton, three hundred and fifty dollars and twenty-nine cents."
It did not appear that B., M. & H. were B., M. & Co. Plaintiff caused
the account thus made out to be sent through the post-office at Stockton,
Utah, to H., who resided at Frisco, Utah, but without any accompanying

letter of explanation or other statement as to why the account was sent
to H. H. admitted receiving the account, said he had neglected to write
to plaintiff about it, and claimed a credit not appearing in the account.
The distance between Stockton and Frisco was not shown, nor the fre-
quency of or length of time usually required to transport the mails be-
tween those places, nor did the record disclose when the action was be-
gun: held, the account was not established as an account stated, and the
trial court did not err in excluding it from evidence when offered as such.
Id.

4. ACCOUNT SETTLED, ERRORS IN, HOW CORRECTED.-In an action in assumpsit
for work and labor performed, the defendant having pleaded and proved
a statement of the account therefor, and a settlement and payment in full,
the plaintiff can not avoid the settlement for mistakes in the items of
the account settled. This can be done only by an action to surcharge
and falsify the account. Roach v. Gilmer, 389.

5. UNLIQUIDATED DEMAND, EFFECT OF SETTLEMENT OF.-A payment made and
accepted as an adjustment of an unsettled or unliquidated demand will
operate as a satisfaction, although shown to be much less than the creditor
was entitled to receive and would have received had he brought an
action; and although, at the time of the settlement, the creditor objects
to some of the items of the account as finally settled. The creditor can
not accept a sum certain, tendered in satisfaction of an unliquidated debt
or demand, and avoid the conditions upon which it is tendered, on the
ground that he dissented at the time. Id.

See EVIDENCE, 4.

ADMINISTRATORS.

AN ADMINISTRATOR IS NOT PERMITTED TO USE THE FUNDS OF HIS ESTATE,
or to borrow money upon its credit, for the purpose of making improve-
ments upon the real estate of the deceased coming to his hands in the
course of administration, and if he does so, the estate is not charge-
able therewith. Rolfson v. Cannon, 232.

AFFIDAVIT.

See ATTACHMENT, 4; CERTIORARI, 3; NEW TRIAL, 3, 6; PLEADING AND PRAC-
TICE, 13.

AGENCY.

See CORPORATIONS, 2.

APPEALS AND WRITS OF ERROR.

1. AN APPEAL FROM THE JUSTICE'S COURT TO THE DISTRICT COURT ENTITLES
the appellant to a trial anew upon the same cause of action and pleadings
as in the justice's court, and he is liable to be confronted with the same
testimony that could have been introduced on the trial before the justice,
and no other. Skews v. Dunn, 186.

2. AN APPEAL FROM A JUDGMENT must be taken within one year from the
time of the rendering of the judgment. Mount v. Simons, 230.

3. AN APPEAL FROM AN ORDER DENYING A NEW TRIAL may be taken, al-
though the time for appealing from the judgment has expired. Id.

4. UNDER SECTION 345 OF THE CIVIL PRACTICE ACT, ONE NOTICE AND ONE UNDERTAKING ON APPEAL only are required upon an appeal from a judgment, and from an order denying a new trial. Id.

5. AN APPEAL FROM A JUSTICE'S COURT TO THE DISTRICT COURT is taken by the filing and service of a notice of appeal, the filing of the required untaking, and the payment of the costs of the justice, including the costs of the transcript. When an appellant has performed these conditions his appeal has been perfected, and his right to a trial in the district court is as absolute as though the case had been begun in that court. Wescolt V. Eccles, 258.

6. WHEN AN APPEAL HAS BEEN PERFECTED FROM A JUDGMENT IN A JUSTICE'S COURT, it is the duty of the justice to transmit the papers to the clerk of the district court, and when they are received by him they are filed, whether he ever indorsed the filing on them or not. Id.

7. A PARTY CAN NOT, BY A RULE OF COURT, be deprived of a statutory right. Id.

S. APPEALS FROM JUSTICES' COURTS, DISMISSAL OF.-An appeal from a judg ment in a justices' court can not be dismissed by the district court, except where there exists such an informality in and disregard of the manner and form prescribed by the statute for taking and perfecting it as renders it ineffectual; in other words, no appeal. Id.

9. FUGITIVE FROM JUSTICE, APPEAL BY.-, -A defendant charged with a felony, and who is a fugitive from justice, has no right to be heard upon any appeal in his behalf. People v. Tremayne, 331.

10. ORDER FORFEITING BAIL, APPEAL FROM.-Neither an order forfeiting a defendant's bail for failure to appear for trial, nor a subsequent order refusing to set aside the forfeiture, nor an order directing that money deposited in lieu of bail be paid into the treasury, is appealable. Id. 11. ONE OF TWO OR MORE DEFENDANTS MAY APPEAL without being joined therein by his co-defendants, against whom no judgment, or no valid judgment has been rendered. Winters v. Hughes, 438.

12. NO NOTICE OF OR BOND ON APPEAL IS REQUIRED BY THE ACT OF JANUARY 18, 1861, regulating appeals to the supreme court. This court will take cognizance of the appeal without a notice or bond, upon the filing here of a transcript of the record of the court below. Id.

13. WRIT OF ERROR IN A CRIMINAL CASE FROM THE SUPREME COURT OF THE UNITED STATES, SUSPENSION OF JUDGMENT ON.-In a capital case, where the sentence of death which was pronounced by the court below has been affirmed by this, this court has no power to order a stay of execution pending the hearing on a writ of error from the supreme court of the United States, whether the application for the stay be made before or after the issuance of the writ. People v. Hopt, 404.

14. A WRIT OF ERROR IS A WRIT OF RIGHT, ALLOWABLE AT COMMON LAW, and will issue by the supreme to the district courts, in the absence of statutory provisions regulating the procedure for prosecuting the writ. Reece v. Knott, 436.

15. A WRIT OF ERROR WILL ISSUE WITHOUT A PETITION THEREFOR, AND NO BOND for the prosecution of the writ is necessary as a condition to its issuance.

Id.