Darrell v. Salwt

• Decision Date: 01 April 1926
• Docket Number: 19772.
• Citation: 244 P. 563,138 Wash. 353
• Parties: DARRELL v. SALWT.
• Court: Washington Supreme Court

244 P. 563

138 Wash. 353

DARRELL v. SALWT.

No. 19772.

Supreme Court of Washington

April 1, 1926

Department 1.

Appeal from Superior Court, King County; Tallman, Judge pro tem.

Action in equity by Sophia Darrell against Daniel Salwt. Judgment for plaintiff, and defendant appeals. Affirmed.

H. E Foster, of Seattle, for appellant.

G. F Vanderveer and S. B. Bassett, both of Seattle, for respondent.

TOLMAN C.J.

This is an action in equity to recover money and real property alleged to have been obtained by the defendant from the plaintiff by fraud. After a trial on the merits, the plaintiff had judgment below awarding her the relief prayed for, and the defendant has appealed.

Error is assigned upon the admission of evidence, the denying of a motion for nonsuit, the finding for the plaintiff, the failure to find for the defendant, and because of refusal to make formal findings of fact. All but the last are determinable only from a complete record of the trial below. Instead of such a record, we have here a statement of facts certified by the trial judge to be '* * * a partial statement of facts in said cause, to wit, about one quarter of the testimony introduced, * * *' though it is further certified to contain all of the testimony of the plaintiff and of the defendant, with the objections thereto and the rulings of the court thereon. This, being an equitable proceeding, is triable do novo here, and disregarding evidence improperly received, we should arrive at our judgment by a consideration of all of the competent evidence which was introduced and considered below. Obviously we are unable to do so under this record. Assuming that the plaintiff may not have made a case by her own testimony, we can not assume that the remaining three-fourths of the evidence, not here, failed to so supplement and complete the case as to entitle her to recover; or, assuming that the testimony of the defendant, standing as it does by the record brought here, shows a good defense, still we cannot assume that the remaining evidence not here did not entirely shatter that defense. Under authority of Mauseth v. Slayden, 177 P. 319, 104 Wash. 512, and other cases both before and since, too numerous and too familiar to justify citation, we are compelled to hold that there is nothing here save only the last error assigned upon which we can pass.

The last error is based upon the refusal of the trial court to make...