Vermule

delivered the opinion of the Court.

The statement in this case is not certified by the Judge, nor agreed upon by the parties. It is, therefore, no part of the record, and thus are excluded from our consideration the second and third points made by the appellant which depend upon it.

Upon the first point there is no error, because it must be supposed that the motion for a new trial before the Justice was abandoned, which the defendant had the right to do.

The fourth point made is, that the Judge who tried the cause did not file his finding of the facts until after the judgment was entered. It seems that judgment was entered on the 11th; on * the same day the Judge [216] wrote his findings of fact and conclusions of law; but did not file the paper containing them until the next day.

It is now urged, upon the authority of Russel v. Armador, 2 Cal. 305 , that this was error. But the case cited does not sustain the appellant. It only decides, that without the decision in writing of the Judge, the judgment cannot stand. It must be the basis of the judgment, like the special verdict of a jury, but that is its legal effect and operation. It is not necessary for this legal effect, that…

In overruling a motion for rehearing, filed the following opinion:

I am of opinion, the petition for rehearing should be overruled. The question is one of practice alone, and having been decided by a majority of the Court, I abandon my objections, and acquiesce in the judgment.

delivered the following dissenting opinion:

It is my misfortune to differ from a majority of the Court in this case. Although the question is one of practice, which, when settled either way, may operate justly, still it is not without importance.

Section 180, chapter 5th of the Practice Act provides, “ Upon the trial of an issue of fact by the Court, its decisshall be given in writing and filed with the clerk, within ten days after the trial took place. In giving the decision, the facts found, and conclusions of law, shall be separately stated. Judgment upon the decision shall be executed accordingly. In the case of Russel v. Armador, 2 Cal. 305 , [217] Court held that the * finding was the basis of the judgment, in the same manner as the verdict of a jury; “and it follows,” says the Court, “that without such decision the judgment cannot stand,”

If the decision of the Court upon the questions of law and fact is to be regarded like the verdict of a jury, as the predicate of the judgment, it follows, that as no judgment could be rendered in anticipation of the verdict of the jury, or until the verdict was actually returned and recorded, so no judgment can be rendered until the…