Rapp v. Ellis

Decision Date28 September 1942
Docket Number28568.
Citation129 P.2d 545,14 Wn.2d 659
PartiesRAPP v. ELLIS et al.
CourtWashington Supreme Court

Action by William Rapp against George F. Ellis and Dora Ellis husband and wife, the Hart Mill Company and the Seattle First National Bank, for reformation by plaintiff of a contract between himself and George F. Ellis, for judgment against George F. Ellis for damages on account of alleged breach of contract, for foreclosure of a lien which plaintiff claimed against certain logs belonging to George F. Ellis and to have the lien declared superior to claims against the logs on the part of the Hart Mill Company and the Seattle First National Bank. The Seattle First National Bank was not served with process and made no appearance in the action. George F. Ellis and Dora Ellis filed a cross complaint, asking for judgment against plaintiff on account of alleged overpayment and for damages suffered by them because of the burning of certain of their timber by fire allegedly caused by plaintiff's negligence. From the judgment the plaintiff appeals, and George F. Ellis and Dora Ellis cross appeal.

Affirmed.

Appeal from Superior Court, Pacific County; William E. Campbell judge.

Fred M Bond, of South Bend, for appellant.

Wright & Wright, of Seattle, for respondents Ellis.

Roy W. Seagraves, of Raymond, for respondent Hart Mill Co.

BEALS Justice.

This action was instituted by William Rapp, as plaintiff, against George F. and Dora Ellis, husband and wife, and Hart Mill Company and Seattle First National Bank, corporations. Plaintiff sought reformation of a contract between himself and Mr. Ellis as against the latter, also demanding judgment against Mr. Ellis for damages on account of alleged breach of contract. Plaintiff also prayed for foreclosure of a lien which he claimed against certain logs belonging to Ellis, and asked that this lien be declared superior to claims against the logs on the part of defendants Hart Mill Company and Seattle First National Bank.

Defendant bank was not served with process, and made no appearance in the action. Defendants Ellis answered the complaint, denying that plaintiff was entitled to recover either for breach of contract or upon his alleged claim of lien. These defendants, then, by way of a cross-complaint, asked for judgment against plaintiff on account of an alleged overpayment in the sum of $194.88, and demanded judgment for $6,650, by way of damages suffered by them because of the burning of certain of their timber, defendants alleging that the fire was caused by the negligence of plaintiff. Defendant Hart Mill Company admitted that it had purchased logs from defendants Ellis, but denied that the logs were subject to any lien in plaintiff's favor.

The case, being equitable in its nature, was tried to the court without a jury. The court made extensive findings of fact, and from them drew conclusions of law in favor of defendants Ellis, followed by a judgment in their favor and against plaintiff, for the sum of $124.19. From this judgment, plaintiff has appealed, and defendants Ellis have cross-appealed.

In support of his appeal, appellant prepared a statement of facts, but the same having been stricken on motion is not Before us, leaving for consideration only the pleadings, together with the findings of fact, conclusions of law and decree.

Respondents and cross-appellants Ellis have appeared by their counsel; respondent Hart Mill Company, which took no cross-appeal, has filed a brief asking that on affirmance of the judgment it be allowed damages as for a frivolous appeal as against it.

Appellant's opening brief, having been filed Before the statement of facts in the case was stricken, is naturally of little assistance, as errors assigned based upon matters contained in the statement of facts, in the absence of such a statement, cannot be considered. Respondents contend that upon the record Before us the judgment should be affirmed on appellant's appeal and reversed on their cross-appeal, while appellant in his reply brief argues that the findings of fact not only do not support the decree, but contradict the same, and that for this reason the decree should be reversed on his appeal and affirmed on respondents' cross-appeal.

While under the statute appeals in equitable actions are heard in this court de novo, it has for many years been our practice in such appeals, in the absence of a statement of facts, to examine the record and determine whether or not, in the light of the findings of fact and conclusions of law when made by the trial court, the decree appealed from should be affirmed or reversed. While in an equitable action the superior court is not required to make and enter findings of fact, when such are made by the court, this court on appeal has always held that such findings were entitled to due consideration.

In the early case of Roberts v. Washington National Bank, 11 Wash. 550, 40 P. 225, 226, this court held that 'findings of fact in an equity case and in one at law are placed upon substantially the same basis,' although in an appeal from a decree in equity, findings of fact do not stand upon the same footing as the verdict of a jury. It was held, however, that when the court has entered findings in an equitable case, exceptions must be taken thereto by a party desiring to test the correctness of the findings on appeal.

In the case of Watson v. Sawyer, 12 Wash. 35, 40 P. 413, 41 P. 43, an equitable action in which was sought the foreclosure of a mortgage, the plaintiff appealed from an adverse decree, but brought Before this court no statement of facts. The respondent having moved to dismiss the appeal because of the absence of any statement of facts, and for other reasons, the motion was denied, this court saying:

'As to the second ground: It is not necessary that there should be any statement of facts in order that an appeal should be entertained by this court for the purpose of determining whether or not the conclusions of law and the decree were warranted by the findings of fact.'

The judgment appealed from was reversed.

This case was followed in the case of Seattle v. Smithers, 37 Wash. 119, 79 P. 615, in which a decree in an equitable action was reversed, the record containing no statement of facts.

In the recent case of Cooper & Co. v. Anchor Securities Co., 9 Wash.2d 45, 113 P.2d 845, 849, is found the following: 'The rule is that findings upon conflicting evidence in an equity case will not be disturbed on appeal unless it can be said, and we can not so say in the case at bar, that the evidence preponderates against them. Peterson v. Ogle, 110 Wash. 610, 188 P. 768; Yarnall v. Knickerbocker Co., 120 Wash. 205, 206 P. 936.'

In the following cases, this court has entertained and determined appeals from decrees entered by the superior court in equitable actions in which the record on appeal contained no statement of facts, but findings of fact and conclusions of law only: Gould v. Austin, 52 Wash. 457, 100 P. 1029; Yakima Grocery Co. v. Benoit, 56 Wash. 208, 105 P. 476; Architectural Decorating Co. v. Nicklason, 66 Wash. 198, 119 P. 177; Berens v. Cox, 70 Wash. 627, 127 P. 189; Mondioli & Stewart v. American Building Co., 83 Wash. 584, 145 P. 577; Smith & Co. v. Hardin, 133 Wash. 194, 233 P. 628; Bannister v. Cavanaugh, 175 Wash. 451, 27 P.2d 695; Ernst v. Guarantee Millwork, Inc., 200 Wash. 195, 93 P.2d 404.

In the case of Holden v. Romano, 61 Wash. 458, 112 P. 489, 490, in considering an appeal from an equitable decree, the record containing findings of fact but no statement of facts, this court said: 'Furthermore, in the absence of a statement of facts, we must presume that the testimony supports the findings, and would deem the complaint amended, if need be. We are further of opinion that the findings support the decree, but if they do not, that fact of itself affords no ground for reversal. This is an equity case and no findings were necessary. In such cases it is only where the findings are complete in themselves, and show affirmatively that a different judgment should have been rendered, that this court will interfere or reverse the judgment of the trial court.'

In the case of Katterhagen v. Meister, 75 Wash. 112, 134 P. 673, 674, an equitable action, this court on appeal by the plaintiff modified the decree appealed from, in the course of the opinion using the following language:

'It is next contended that, the evidence not having been brought to this court, there is nothing to review. We have also held that a statement of facts is not necessary where the appellant desires to raise the question that the facts found do not warrant the conclusions of law or the decree. [Citations] The precise point urged by the respondents, however, is that, this being a case of equitable cognizance, no findings were necessary; that the findings were incomplete, and hence that it will be presumed that the evidence sustains the decree. [Citations] These cases merely hold that findings are not necessary in equity cases, and therefore that such cases will not be reviewed, in the absence of a statement of facts of bill of exceptions, where the findings are defective or incomplete; the presumption being that the evidence warrants the judgment. The finding under review is neither defective nor incomplete, but on the contrary full and specific.'

In the case of Wilkeson v. Rector, 176 Wash. 377, 29 P.2d 748, 749, an appeal by plaintiff from an adverse decree entered in an action for injunctive relief, the statement of facts having been stricken on motion, this court denied a motion to dismiss the appeal, saying:

'Respondents have also interposed a motion to dismiss the appeal. The contention is that, this being a case of equitable...

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    • United States
    • Court of Appeals of Washington
    • August 29, 2022
    ...the right to control test in a vicarious liability context, its application has since broadened. Rapp v. Ellis, 14 Wash.2d 659, 671-73, 129 P.2d 545 (1942) (applying right to control test to breach of contract action); Awana v. Port of Seattle, 121 Wash. App. 429, 435, 89 P.3d 291 (2004) (a......
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  • Karstetter v. King Cnty. Corr. Guild
    • United States
    • Court of Appeals of Washington
    • August 29, 2022
    ...... Hollingbery applied the right to control test in a. vicarious liability context, its application has since. broadened. Rapp v. Ellis , 14 Wn.2d 659, 671-73, 129. P.2d 545 (1942) (applying right to control test to breach of. contract action); Awana v. Port of ......
  • Osawa v. Onishi
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    • United States State Supreme Court of Washington
    • May 19, 1949
    ...... fair preponderance of the evidence, they will be. disregarded.'. . . . See,. also, Rapp v. Ellis, 14 Wash.2d 659, 663, 129 P.2d. 545; Widman v. Maurer, 19 Wash.2d 28, 141 P.2d 135;. Wingard v. Pierce County, 23 Wash.2d ......
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