Ferdig v. Simpson

47 Wash. 475 | Wash. | 1907

Mount, J.

Respondents brought two separate actions in the court below against the same defendants, to foreclose liens for labor performed upon a certain building which was being erected in the town of Elma, in Chehalis county, for the Montesano State Bank, by appellant as contractor. After the actions were begun, they were consolidated by order of the court and tried as one action. The trial resulted in findings and a decree in favor of the plaintiffs in the action.

No exceptions appear to have been taken to the findings. They must therefore be considered as the facts in the case, and supported by the evidence. Adams v. Casey, 89 Wash. 87, 80 Pac. 858. We shall, therefore, not consider any of the questions presented which go to the sufficiency of the evidence to support the findings. It is not contended that the findings made by the court are insufficient to sustain the judgment.

The court found that $25 was a reasonable sum to be allowed for attorney’s fees to each of the plaintiffs, and judgment was entered therefor. When the costs were taxed, $25 was inserted therein as costs for attorney’s fees. When the attention of the respondents and the trial court was called to this fact, respondents promptly remitted the attorney’s fees taxed as costs, and the court made an order striking that item from the cost bill. No error can therefore be predicated upon the fact that the attorney’s fees were taxed twice.

At the trial the appellant paid into court as a tender the sum of $58.95, for each plaintiff, The court found that this’ tender was not made until the day of trial,, after all the costs had been incurred, and concluded that the same was therefore insufficient to avoid the payment of costs. After judgment and upon motion of the respondents, the court made an order authorizing the respondents to withdraw this money and apply the same upon the judgment. Appellant now contends that this was error- because the tender was a conditional one. It is true the answer pleads a conditional tender, but the tender paid into court at the time of the trial is not shown to be the one pleaded in the answer, and the court did not find that the tender paid was a conditional one. We must presume, in the absence of an exception to the court’s finding upon that subject, that the finding is correct and -contains all the facts, and that the deposit was therefore unconditional.

There is no reversible error in the record. The judgment must therefore be affirmed.

T-TA-nT.-R.-y, C. J., Crow, Fullerton, Rudkin, Dunbar, and Root, JJ., concur.