CHARLES D. SEMPLE v. O. C. BURKEY, WASHINGTON SEAWELL, THOMAS J. HENLEY, and S. C. HASTINGS

CHARLES D. SEMPLE v. O. C. BURKEY, WASHINGTON SEAWELL, THOMAS J. HENLEY, and S. C. HASTINGS. Where a motion is tried by the Court, which involves an issue of fact, and the facts are neither found by the Court, nor a statement of facts agreed upon by the parties, although the judgment be taken by consent pro forma, and without prejudice, it cannot stand on appeal, and the cause will be remanded. Appeal from the Sixth Judicial District. The proceedings in this case grew out of a motion to set aside a sheriff’s sale. Several affidavits and depositions were taken and submitted to the Court in the course of the hearing, and also the record of the proceedings, judgment and sale, which were the basis of the motion. The record shows that the case was elaborately prepared, and argued, in the Court below; and, by consent of parties, judgment was entered pro forma, without prejudice, overruling the motion. But an issue of fact was involved in the motion, and no statement of facts agreed upon by the parties, or found by the Court. [MAJORITY — Heydenfeldt, Justice.] Heydenfeldt, Justice. This record discloses the trial by the Court of a motion involving an issue of fact. The judgment recites, “ by consent of parties the motion is overruled without prejudice to either party on appeal.” This judgment is pro forma, but it is unaccompanied by any agreed statement of facts, and there is no finding by the Court. In Russel v. Almador, we decided that without such finding the judgment cannot stand. The agreed statement of facts can be the only substitute for it. The judgment is reversed, and cause remanded for a new trial.