Smith v. Glenn

• Decision Date: 28 September 1905
• Citation: 40 Wash. 262,82 P. 605
• Court: Washington Supreme Court
• Parties: SMITH et al. v. GLENN et al.

82 P. 605

40 Wash. 262

SMITH et al. v. GLENN et al.

Supreme Court of Washington

September 28, 1905

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Almira L. Smith and another against Charles Glenn and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Gallagher & Thayer, for appellants.

Barnes & Latimer, for respondents.

ROOT J.

Respondents instituted this action to rescind a contract for the purchase of certain farming lands from appellants and to recover $500 paid on account of said contract. From a judgment in favor of respondents, this appeal is prosecuted. Appellants appear in this court by different counsel than represented them in the trial court.

Respondents move to strike the statement of facts upon two grounds: (1) Because said statement is not indexed; (2) because said statement does not contain all of the evidence. The index to the statement has been prepared by the clerk of this court and attached at the request of appellants' attorneys. This disposes of the first objection. The certificate of the trial judge recites that the statement of facts includes all of the material evidence, 'except that there is omitted from said statement of facts all evidence which refers solely to the kind, quality, physical condition fertility, productivity, salability, and value of the lands and premises mentioned in the pleadings in this cause.' The evidence thus excluded had to do with an issue of fact upon which the trial court found in favor of appellants. Said issue is in no manner involved in the case as it comes before us on appeal. Hence it was not necessary to bring up said evidence. The practice of eliminating all evidence except such as is material to the issues triable in this court is to be commended. The motion to strike the statement is denied.

It is further maintained, however, by respondents that this court cannot consider said statement, for the reason that no legal exceptions were reserved to the findings. The only exceptions taken appear at the end of the findings in the following language: 'To each of which findings proposed by the defendants and given by the court, duly excepted to on the part of the plaintiffs; and to each of the findings proposed by the plaintiffs and given by the court were duly excepted to by the defendants; and the exceptions of the parties aforesaid are hereby allowed.' Under numerous decisions of this court, these exceptions are insufficient. Hannegan v. Roth, 12 Wash. 65, 40 P. 636; Peters v. Lewis, 33 Wash. 617, 74 P. 815. It has, however, been the holding of the court, in cases of defective exceptions or in the absence of any exceptions to the findings of fact that it would examine any ruling of the trial court in excluding evidence, where proper exception had been reserved to said ruling. Schlotfeldt v. Bull, 17 Wash. 6, 48 P. 343; Lilly v. Eklund (Wash.) 79 P. 1107; Bringgold v. Bringgold (decided Sept. 13, 1905) 82 P. 179.

Error is assigned herein upon the action of the trial court in excluding certain evidence offered by appellants. Respondent Almira L. Smith, being upon the witness stand was asked upon cross-examination by appellants' counsel this question: 'Did they offer to give you the privilege of going on there and putting in the crop?' and the following question: 'I will ask if they did not offer to place you in possession of that piece of property?' Both questions were objected to 'for the reason that it is not shown that they had the right to give the privilege, and that it is a matter of defense.' Said objection was sustained. This question was also asked: 'Isn't it a fact that when you purchased this piece of ground from these defendants that you didn't do it upon the representations indicated in that last subdivision of paragraph 5 of that complaint?' This was objected to as improper in form, not tending to prove any issue, incompetent, irrelevant, and immaterial. The question referred to an allegation to the effect that appellants represented themselves as having, and being able to convey, good title. The objection was sustained by the court. In view of the undisputed evidence and facts in the case and the unquestioned...