Koster v. Wingard

Decision Date05 September 1957
Docket NumberNo. 34168,34168
Citation314 P.2d 928,50 Wn.2d 855
PartiesNick KOSTER, Appellant, v. L. G. WINGARD and Jane Doe Wingard, his wife, Respondents.
CourtWashington Supreme Court

Michael S. Curtis, Seattle, for appellant.

Rummens, Griffin, Short and Cressman, Seattle, for respondents.

FOSTER, Justice.

In the second amended complaint, upon which this action went to trial, appellant claimed an equitable mortgage on four fishing boats in which he asked the court to declare a resulting trust. The trial court found that the appellant had not proved his case and dismissed the action. He appeals.

The first complaint, verfied March 25, 1954, sought $10,000 for work and labor performed upon the four fishing boats. In an amended complaint, verified October 16, 1954, additional damage was claimed for each boat in the sum of $1,200 for each season detained, a total of $14,400. But in the second amended complaint, verified on February 6, 1955, the original claims were abandoned, and an equitable mortgage claimed and an accounting asked. The inconsistency of the claims is not explained.

The appellant had been in the fish business and wanted to get back into it but was without funds. In the spring of 1952, appellant advised the respondents he knew of four partially completed fishing boats in Everett, and if the respondents would buy them and finish them, he then would purchase them from the respondents as soon as he could raise the money and fish them during the ensuing season. Appellant was granted time to raise the necessary funds, but was never able to do so. The respondents purchased the boats from the owner and received a bill of sale therefor. Respondents, likewise, purchased the materials with which to complete the boats. When completed, they were delivered by the appellant to the respondents at dockside in Seattle for transshipment to Alaska. In the three-year interval prior to the filing of the amended complaint, appellant did not claim to own the boats, but, on the other hand, asserted that the respondents were indebted to him.

Six of nine assignments of error are either 'The trial court erred in failing to find,' or 'The trial court erred in not holding.' Such are not assignments of error but an invitation to this court to search the record to see if we can find error, but we consider only errors specifically pointed out. Rules on Appeal 42(1)(f) and 43, 34A Wash.2d (Supp. No. 6) 11, 12, as amended effective January 2, 1953, require appellant to set out verbatim in the assignments of error, so much of the findings refused as are claimed to be erroneous; otherwise such errors cannot be considered.

We took occasion to say in Becwar v. Bear, 41 Wash.2d 37, 246 P.2d 1110, 1111, that the phrase 'erred in holding' or 'erred in failing to hold' was not an assignment of error and that at best such assignments were only applicable to conclusions of law and do not bring up for review the facts found upon which the conclusions were based. See, also, Downie v. Cooledge, 48 Wash.2d 485, 294 P.2d 926; In re Youngkin's Estate, 48...

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11 cases
  • B-Bar Tavern Inc. v. Prairie Mountain Bank (In re B-Bar Tavern Inc.)
    • United States
    • United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — District of Montana
    • December 18, 2013
    ...mortgage cannot exist without a debt, and that debt must be identified and the amount fixed with certainty.” (quoting Koster v. Wingard, 50 Wash.2d 855, 314 P.2d 928 (1957)). PMB argues that Hone v. Carlson is an unpublished decision which should not be cited as authority. The Court agrees.......
  • State v. Reader's Digest Ass'n, Inc.
    • United States
    • Washington Supreme Court
    • September 28, 1972
    ...conclusions of law and do not bring up for review the findings of fact upon which the conclusions are based. Koster v. Wingard, 50 Wash.2d 855, 856--857, 314 P.2d 928 (1957). The trial court made only two conclusions of law: (1) the 'neighbor copy' issue was moot; and (2) the complaint shou......
  • Burr v. Lane
    • United States
    • Washington Court of Appeals
    • January 14, 1974
    ...would be insufficient under the rationale of Pederson v. Pederson, 41 Wash.2d 368, 249 P.2d 385 (1952). See Koster v. Wingard, 50 Wash.2d 855, 314 P.2d 928 (1957). However, we are able to pass on the contentions raised based on the assignment of error in its total form. The assignment's fur......
  • Port of Chelan County v. Maydole
    • United States
    • Washington Court of Appeals
    • January 20, 1971
    ...of Comm'rs, 77 Wash.Dec.2d 549, 463 P.2d 617 (1970); Union Bank v. Kruger, 1 Wash.App. 622, 463 P.2d 273 (1969); Koster v. Wingard, 50 Wash.2d 855, 314 P.2d 928 (1957); Becwar v. Bear, 41 Wash.2d 37, 246 P.2d 1110 (1952). These findings support the trial court's conclusions of law. Therefor......
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