Lilly v. Eklund

• Decision Date: 22 March 1905
• Citation: 37 Wash. 532,79 P. 1107
• Parties: LILLY v. EKLUND et ux.
• Court: Washington Supreme Court

79 P. 1107

37 Wash. 532

LILLY v. EKLUND et ux.

Supreme Court of Washington

March 22, 1905

Appeal from Superior Court, Kitsap County; John C. Denney, Judge.

Action by J. E. Lilly against Oluf Eklund and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Revelle & Revelle, for appellants.

Charles A. Riddle, for respondent.

ROOT J.

This was an action to quiet title, and resulted in a decree in favor of the respondent. The trial court made and filed separate findings of fact and conclusions of law. The only exception shown to have been taken to the findings is found in a minute in the clerk's docket, as follows 'Plaintiff, by his attorney, C. A. Riddle, now files findings of fact and conclusions of law and decree herein, to which defendants, Oluf Eklund and Pauline Eklund, his wife by their attorneys, Revelle & Revelle, except, and request thirty days from May 4, 1904, in which to file statement of facts. Allowed by the court.'

This court has repeatedly held that exceptions taken in this manner are insufficient under the statute, and that they will not be considered, except when it appears that each and all of the findings are erroneous. It is not contended that all are so in this case. Respondent, in his brief, objects to the consideration of the statement of facts filed herein, and moves to strike said statement and affirm the judgment, for the reason that appellants have not made or taken any proper or sufficient legal exceptions to the findings of fact, and that there is no basis for an appeal. Appellants urge that inasmuch as findings are not required to be made and filed in equity cases, the taking of exceptions thereto when made, is unnecessary. It is true that the statute does not require findings to be made or filed in equity proceedings, but where findings are made by the trial court, this court has held that exceptions must be taken to them, and taken in a proper manner. See Peters v. Lewis, 33 Wash. 617, 74 P. 815, and cases therein cited. Frequently, where exceptions were not properly taken to the findings, this court, upon motion, has stricken the statement of facts. However, in the case of Hannegan v. Roth, 12 Wash. 65, 40 P. 636, the court declined to strike the statement of facts, but held that the motion should be regarded as an objection to the consideration of the facts embodied in the statement. The case of Schlotfeldt v. Bull, 17 Wash. 7, 48 P. 343, announced the rule that, where exceptions were not properly taken to the findings of fact, this court would not strike the statement of facts, when it appeared that some of the errors relied upon on the appeal were based upon the action of the lower court in excluding evidence. We think this rule is the correct one. Findings of fact, regarded with reference to the evidence admitted and existing in the case, might be perfectly proper and right, whereas the evidence excluded might, if admitted and considered, have changed the character of such findings. Consequently a litigant, by not excepting to findings which are right so far as the evidence admitted is concerned, is not and should not be thereby estopped from having this court review the action of the trial judge in excluding evidence offered by him. The motion to strike the statement of facts will be denied, but the objections to its consideration will be sustained as to everything therein contained, excepting those portions that have to do solely with the action of the court in excluding evidence offered by appellants.

Appellants also urge that they are entitled to have this court review the action of the trial court in denying their motion for a nonsuit made at the close of pl...