Pack v. Peabody

Crow, J. This action was originally commenced by T. H. Pack, William Sutton and Lawrence Powers against James Brownell, to foreclose three separate logger’s liens on certain shinglebolts in Cowlitz county. The defendant failed to appear. Judgment of foreclosure was entered, and an execution was issued to the sheriff of Cowlitz county, by whom it was levied upon the shinglebolts. Thereupon H. N. Peabody and G. L. Buland made and delivered to the sheriff an affidavit and claim to the property, accompanied by an approved bond, and the execution was returned unsatisfied. Thereafter when the cause came on for hearing upon the claim made by Peabody and Buland, the trial court made an order directing that they be made parties defendant in the original foreclosure action, which the plaintiff did by serving 77 and filing an amended complaint. To this amended complaint the defendants Peabody and Buland, and their respective wives, also made defendants, filed a general demurrer, a motion to make more definite and certain, and an answer. On February 2, 1909, the demurrer being overruled, the plaintiffs further amended their complaint, evidently to comply with the requirements of the motion, and the parties immediately proceeded to trial on the issues thus joined. Findings of fact were made in favor of the plaintiffs, upon which a decree of foreclosure was entered against all the defendants. Peabody and wife and Buland and wife have appealed. The appellants have not caused any statement of facts containing the evidence admitted on the trial or at any of the hearings to be prepared and certified to this court, yet their controlling assignments of error present questions which we cannot consider in the absence of such a statement. For instance, they contend that the trial court erred in refusing to release the shinglebolts upon proof of their ownership by the appellants. We have no record before us showing that any such proof was offered or made. They also contend that error was committed in permitting the amendment to the complaint and immediately forcing the appellants to trial without fúrther time for preparation. There is no showing that any continuance was asked, that they were surprised, that any further time for preparation was necessary, or that the trial court abused its discretion. The other assignments of error are equally without merit. The findings of fact only are before us for consideration. In the absence of evidence they cannot be reviewed. The only question is whether they sustain the judgment. Although they are not very complete, we think, upon the issues raised by the pleadings, the record before us and the findings made, the judgment should be affirmed. It is so ordered. Rudkin, C. J., Parker, Mount, and Dunbar, JJ., concur.