Watson v. Sawyer

• Decision Date: 27 May 1895
• Parties: WATSON v. SAWYER ET AL.
• Court: Washington Supreme Court

40 P. 413

12 Wash. 35

WATSON v. SAWYER ET AL.

Supreme Court of Washington

May 27, 1895

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Frederick Watson against Ernest L. Sawyer and others to foreclose a mortgage. From a judgment foreclosing the mortgage, but refusing to include in the amount secured by the mortgage the attorney's fee stipulated for in it, and a commission to the mortgagee for obtaining the money advanced to the mortgagors, plaintiff appeals. Reversed.

George H. Walker and Walker & Fitch, for appellant.

Walter Christian and Murray & Christian, for respondents.

HOYT C.J.

Respondents move to dismiss the appeal on several grounds: (1) That two of the defendants who had appeared in the action were not served with notice thereof; (2) because no statement of facts had been settled and filed; and (3) because the findings of fact and conclusions of law were insufficient to determine the rights of the parties.

The defendants, who, it was alleged, were not served with notice of appeal, were made parties to the action, which was for the foreclosure of a mortgage, only by a general allegation to the effect that they had, or claimed to have, some interest in the property which was subsequent to the claim of plaintiff, and their appearance was only for the purpose of disclaiming any title whatever, and of asking a dismissal of the action as to them, and the action was so dismissed. Under these circumstances, they were not necessary parties to the appeal, and the failure to serve them with notice furnishes no reason for its dismissal.

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 third proposition is also untenable, for the reason that, if the findings of fact were not as complete as they should have been, it was the fault of respondents, and cannot deprive the appellant of the right to have the question of the sufficiency of such findings as were excepted to tested in this court. The motion to dismiss will be denied.

The court found as a fact that the respondents Ernest L. Sawyer and wife employed the appellant to procure a loan for them upon certain real estate in the sum of $3,000, and agreed to pay him for his services in so doing the sum of $236.88; that thereafter the appellant, instead of procuring the loan from some other person, made it himself, and took a note of said respondents for the amount of the loan, and to secure its payment was by them given a mortgage upon the property in question; that, after the note and mortgage had been executed, the appellant and said respondents entered into an agreement to the effect that the mortgagors should at once be paid the sum of $1,000 out of the money so loaned; that the remainder thereof should be retained by the appellant, and be paid out in pursuance of an arrangement between the...