County of St. Louis v. Magie , 198 Minn. 127 ( 1936 )

I dissent. The lower court found that the defendant sheriff "duly performed all the duties" of his office, yet as a conclusion of law held that the sheriff was indebted to the county for failure to account for and turn over certain moneys earned but not collected. The only assignment of error is that "the findings of fact do not justify the conclusions of law and a judgment for plaintiff respondent." Thus there is no settled case nor bill of exceptions, nor was any transcript of the proceedings below brought up. We are bound to presume that the findings had sufficient support in the evidence, for this court, under circumstances as here exist, has followed consistently, since 1872 (see Knoblauch v. Kronschnabel,18 Minn. 272 [300]), the rule that error will not be presumed, but, on the contrary, it will be presumed that competent evidence was introduced to sustain the facts found. And in Peach v. Reed, 87 Minn. 375, 380, 92 N.W. 229, this court not only restated the rule but went so far as to hold that in a case such as this, "No question as to the sufficiency of the pleadings to support the judgment can be raised * * *. And * * * if the facts found are not within the issues made by the pleadings, it will be presumed, the record not showing to the contrary, that such facts were litigated by consent." These cases have been followed time and time again and as late as 1934 in the case of Elton v. N.W. Nat. L. Ins. Co. 192 Minn. 116,255 N.W. 857. It would seem then that we necessarily must assume that the lower court was conscious of the nature and meaning of the finding it made, for, as stated in State v. Minnesota Ontario Paper Co. 147 Minn. 369, 373,180 N.W. 548, 549: "Facts are presumed to be found from a consideration of the evidence and nothing else." Thus under the assignment of error here and on the state of the record it appears to me that judgment should be ordered in favor of all the defendants.