Hayes

(dissenting).

The sole question presented by appellant is whether or not the trial court made erroneous conclusions of law from the facts found. To determine that question we must determine what facts were found.

Trial of the case was completed on May 25, 1939. Appellees presented their pro *902 posed findings of fact and conclusions of law on May 26, 1939. Appellant presented his proposed findings of fact and conclusions of law on May 31, 1939. After deliberation and on June 5, 1939, the court below adopted the findings of fact proposed by appellant, but made different conclusions of law, and judgment was entered on the same day. Sixteen days after entry of judgment and on June 21, 1939, appellees filed a motion to amend the findings. Notice of appeal was filed by appellant on August 31, 1939.

On September 21, 1939, there was entered and filed an “Order Supplementing And Amending The Findings Of Fact”. Therein it was recited that notwithstanding Federal Rules of Civil Procedure, Rule 52(b), 28 U.S.'C.A. following section 723c, “the court possessed inherent power on its motion and, independently of any motion by a litigant to amend the aforesaid heretofore signed Findings so as…

Appellant sued for an accounting of profits inuring to appellees from the sale of shares of stock in a mining corporation. From an adverse judgment he appeals.

A preliminary question involves the record on which the appeal is to be heard. The printed record contains the findings of fact and an order supplementing and amending the findings, but it does not contain the evidence.

At the conclusion of appellant’s case the court granted a motion for a judgment of involuntary nonsuit, and thereafter made findings of fact. Sixteen days after the entry of these, namely, on June 21, 1939, appellees filed a motion to modify and amend the findings in certain particulars. On August 30, 1939, notice of appeal was given. On September 21, 1939, the court, of its own motion, made an order supplementing and amending the findings.

Appellant contends that the course pursued was without authority under Rules 52 and 59 of the federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. However, he asserts that the recital of the facts as contained in the supplemental order correctly reflects the evidence, and he insists that these recitals confirm his view of the case. At the close of his…