Fitzpatrick v. Engard
Fitzpatrick v. Engard
Opinion of the Court
The first, second and fifth specifications, relating to the findings of fact recited therein, are not sustained. An examination of the record has failed to convince us that there is any substantial error in either of the learned judge’s findings, and, so far as they are necessary to support the decree, they must be accepted as verity. His conclusions of law, complained of in the third and fourth specifications, are also correct. We find nothing in either of the first five specifications that requires discussion.
While the elements of a proper decree — based upon the facts found by the court — are sufficiently presented in the fifth to the seventh specifications, inclusive, no formal decree appears to have been drawn by plaintiff’s counsel and filed by the court. Such loose practice is not to be commended; and, if it were not for the fact that appellants have treated the learned judge’s legal conclusions as, in effect, a final decree, we would be obliged to quash the appeal and remit the record for correction. As thus viewed by the appellants, however, the record may be considered amended in that regard.
The eighth to tenth specifications are not according to rule, in that they omit to recite the particular exceptions to which they respectively relate. But, waiving that irregularity, we
Decree affirmed and appeal dismissed at appellants’ costs.
Reference
- Full Case Name
- Philip Fitzpatrick v. Emma Engard, S. Louisa Hetzel, William H. Woodward and Albert Gordon
- Cited By
- 18 cases
- Status
- Published
- Syllabus
- Equity — Equity practice. It is improper practice in equity to treat the court’s conclusions of law as the equivalent of a decree. A formal decree should be drawn. Practice, S. O. — Assignments of error — Exceptions in equity proceedings. Assignments of error which set forth portions of the opinion of the court below on exceptions to the court’s findings of fact and conclusions of law are irregular if they omit to recite the particular exceptions to which the assignments relate. Principal and agent — Statute of frauds. A signature made by direction of a party in his presence to a contract for the sale of land is a signature by the party and not by the agent. No question of agency under the statute of frauds arises in such a case.