Fisher v. Hagstrom

• Decision Date: 09 February 1950
• Docket Number: 30971.
• Parties: FISHER v. HAGSTROM et al.
• Court: Washington Supreme Court

214 P.2d 654

35 Wn.2d 632

FISHER v. HAGSTROM et al.

No. 30971.

Supreme Court of Washington

February 9, 1950

Department 1

H. R Fisher brought action against Carl Frederick Hagstrom and others to quiet title to disputed strip along boundary line and plaintiff's wife was by stipulation joined as a plaintiff.

The Superior Court of King County, Clay Allen, J., rendered a judgment for the defendants, and the named plaintiff appealed, and the defendants moved to dismiss the appeal.

The Supreme Court, Donworth, J., held that appeal was not required to be dismissed, that recitals in judgment were required to be regarded in legal effect as though they were findings, that Supreme Court was required to attach great weight to such recitals, that evidence sustained recitals that District Court properly rendered judgment for defendants without requiring them to produce evidence in support of their affirmative defenses, that evidence sustained finding that defendants acquired title by adverse possession, and that plaintiff could not claim on appeal that District Court erred in defining boundary line in certain manner.

Affirmed.

Where counsel of plaintiffs made no objection to trial court's suggestion about using service of plaintiffs' surveyor to obtain legal description of boundary line, and judgment contained boundary line furnished by surveyor without objection being made by plaintiffs, plaintiffs could not claim for the first time on appeal that trial court erred in defining the boundary line in manner described.

Tanner, Garvin & Ashley, Seattle, for appellant.

Leon L. Wolfstone, Seattle, for respondents.

DONWORTH Justice.

This action was instituted by the plaintiff H. R. Fisher to quiet title to certain lands as against any claim of the defendants. The defendants by their amended answer denied plaintiff's title and interposed two affirmative defenses: (1) adverse possession for more than ten years, and (2) a common boundary established by agreement and acquiescence. The affirmative defenses being denied by the reply, the action was tried to the court sitting without a jury. During the trial, plaintiff's wife, Nettie Fisher, was by stipulation joined as a party plaintiff.

At the conclusion of the plaintiffs' case, the defendants interposed a challenge to the sufficiency of the evidence and a motion to dismiss the action. The challenge was sustained and the motion was granted by the trial court. The plaintiffs thereupon moved for a new trial. This motion was denied, and judgment of dismissal was entered in which the court fixed the common boundary line between the land owned by the parties respectively. This resulted in awarding to the defendants title to the disputed area. From this disposition of the case plaintiffs have appealed.

Respondents have moved to dismiss appellants' appeal on two grounds: first, that the transcript on appeal was not filed with the clerk of the superior court within thirty days after the appeal was taken, as provided by Rule 8 of the Rules of the Supreme Court, 18 Wash.2d 7-a; and secondly, that appellant Nettie Fisher did not join her husband in the execution of the appeal bond nor in the brief filed by him in this court.

With regard to the first ground of the motion, the requirement of Rule 8 regarding the filing of the transcript in a civil case is not jurisdictional and an appeal will not be dismissed where, as here, the transcript was ordered prior to the filing of respondents' motion to dismiss.

In this case the transcript was filed with the clerk of the superior court eight days after the motion to dismiss was filed in this court. This is sufficient to warrant denial of the motion upon the first ground specified. Briggs v. United Fruit & Produce, Inc., 11 Wash.2d 466, 119 P.2d 687.

Addressing ourselves to the second ground of the motion, it appears from the record that Nettie Fisher joined with her husband in giving the notice of appeal in this case. The purpose of the appeal bond is to protect a respondent in regard to any costs that may be taxed in his favor in this court.

Rem.Rev.Stat. § 1722, provides in part: 'The appeal bond must be executed in behalf of the appellant by one or more sufficient sureties, and shall be in a penalty of not less than two hundred dollars in any case; * * * It shall be conditioned that the appellant will pay all costs and damages that may be awarded against him on the appeal, or on the dismissal thereof, not exceeding two hundred dollars.'

Rem.Rev.Stat. § 1721, provides that an appeal shall become ineffectual for any purpose unless 'an appeal bond to the adverse party conditioned for the payment of costs and damages as prescribed in section 1722, be filed with the clerk of the superior court, or money in the sum of two hundred dollars be deposited with the clerk in lieu thereof. * * *'

Since the husband is made, by the provisions of Rem.Rev.Stat.§ 6892, the statutory agent of the community, he has authority to execute an appeal bond which is a community obligation although not signed by the wife. The situation is the same as if he had executed a promissory note in the course of community business. The presumption is that a note signed by the husband alone is a community debt. Proff v. Maley, 14 Wash.2d 287, 128 P.2d 330, and cases cited therein.

Since the purpose of the execution of the appeal bond with sufficient surety and the filing thereof is merely to make effectual the notice of appeal already given by appellants husband and wife, we hold that the bond in this case was executed by appellant husband on behalf of both appellants (i. e., the community consisting of husband and wife) and was sufficient to make the appeal effectual as to both of them, even though not signed by appellant wife. If the appellant husband had deposited the sum of $200 of community funds with the clerk in lieu of filing the bond (which is an alternative means of making an appeal effectual under the statute, quoted above) this would have been sufficient compliance with the statute, even though done by the husband without the knowledge or consent of the wife.

We see no legal distinction between the two methods of complying with Rem.Rev.Stat. § 1721, since the object of the statutory requirement is to indemnify the respondents in respect to any costs awarded them by this court. The filing of a valid community undertaking signed by appellant husband and by the corporate surety fully complies with the provisions of §§ 1721 and 1722. Respondents are protected as to any costs they may be awarded in this court and have no ground for complaint.

Regarding the failure of counsel to include the name of appellant wife on the brief filed in behalf of appellant H. R. Fisher, this irregularity does not, in our opinion, constitute an adequate ground for dismissing the appeal as to either H. R. Fisher or his wife. The subject matter of the action being admittedly community real property and appellant wife having joined with her husband in giving notice of appeal, it seems to us that, in legal contemplation, the wife authorized her husband to present to this court on behalf of the community their arguments in opposition to the judgment of the trial court, since the interests of both appellant husband and appellant wife in this litigation are identical. For these reasons, respondents' motion to dismiss the appeal is denied.

It is proper to state that appellants were represented in the trial court and in the steps taken to perfect this appeal by counsel other than those appearing for them in this court.

Turning to the merits of this controversy, the evidence Before the trial court when appellants rested their case was substantially as follows:

The property in question, a narrow strip somewhat triangular in shape, is situated on the north shore of Mercer Island which is in Lake Washington. This triangular parcel and its location with respect to the abutting parcels is illustrated by the diagram below. It is admitted that appellants (husband and wife) are the record owners of tract A. Respondents are record owners of tract B.

(Image Omitted)

The hatched area represents the land the title to which is the subject of this action. The base of the triangle (at the top of the diagram) was stated by various witnesses to be between five and twelve feet long. Apparently several surveys had been made at different times to establish the east line of tract B but they did not coincide. The sides of the triangle are approximately three hundred feet in length. There are two hedges shown in the diagram--one in the westerly part of tract A and the other parallel thereto in the westerly part of tract B.

In 1921 Magnus Roose and his wife owned tract B and about 1922 Roose put up a fence along the east side of the triangle to pen in his geese and very shortly thereafter Mrs. Roose and her son planted a hedge along the line of the goose fence.

The hedge (designated in the testimony as the easterly hedge) began a few feet from the lake and continued in a southerly direction to about the center of the westerly portion of the tract. From there the goose fence continued along approximately the same line to a point near the south boundary of the property. During this same period Roose surveyed the line between tract A and tract B because he thought that he did not have enough ground. The result of this survey placed the boundary line about five feet west of the hedge and the goose fence at the north end thereof. However, despite the result of the survey the Rooses continued to occupy the land up to the hedge.

Respondents purchased this tract from the Rooses in 1928 at which time the hedge was fully mature and the wire fence was interwoven into the hedge as far as the hedge extended and...