Berens v. Cox

• Decision Date: 29 October 1912
• Citation: 127 P. 189,70 Wash. 627
• Parties: BERENS v. COX et al.
• Court: Washington Supreme Court

127 P. 189

70 Wash. 627

BERENS v. COX et al.

Supreme Court of Washington

October 29, 1912

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Tony Berens against Guy Cox and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Frank S. Carroll, of Tacoma, for appellant.

Frank D. Nash, of Tacoma, for respondents.

MORRIS J.

This is a suit in equity, to set aside a sheriff's sale and decree appellant to be the owner of certain real property. At the conclusion of the hearing relief was denied appellant and in due time thereafter findings and decree were entered in favor of respondents, from which this appeal is taken. The errors assigned are in the admission and rejection of evidence, the findings, and decree.

Appellant took no exceptions to the findings, and for this reason respondents move to strike the statement of facts. In contesting this motion, appellant suggests that, inasmuch as findings are not required in equity cases, exceptions thereto are unnecessary. It must be admitted that, under our practice, findings are not necessary in equity cases; but this does not disturb the uniform rule that where findings are made, exceptions must be taken to them in the proper manner to obtain a review of them in this court. It does not follow, however, that the statement of facts should be stricken because of such failure, when, as here, any part of the error relied upon is the rejection of evidence. It might be that the facts as found by the court are properly found under the evidence admitted, and there is no occasion to take exceptions to facts admittedly correct in the light of the evidence received; whereas, evidence excluded by the court might, if admitted and considered, change the character of the findings. Hence it has been held in Schlotfeldt v. Bull, 17 Wash. 6, 48 P. 343, Lilly v. Eklund, 37 Wash. 532, 79 P. 1107, Bringgold v. Bringgold, 40 Wash. 121, 82 P. 179, Smith v. Glenn, 40 Wash. 262, 82 P. 605, and Pederson v. Ullrich, 50 Wash. 211, 96 P. 1044, that, even though exceptions were not properly taken to the findings, this court would refuse to strike the statement of facts, when it appears that error is alleged in the exclusion of evidence.

The motion to strike the statement of facts will therefore be denied; but the objection to its consideration must be sustained, in the light of the failure to take exceptions to the...