Rapp v. Ellis ( 1942 )

Findings of fact and conclusions of law are not required in cases of equitable cognizance. Equitable cases are heard denovo in this court. To hear a case de novo is to try it again, another time, or try it over. A case is tried de novo in this court by an examination of the record made in the superior court, and this court must have the statement of facts before it in order to decide upon the facts presented.

In the early decision of Enos v. Wilcox, 3 Wn. 44,28 P. 364, this court adopted a rule to apply to cases in equity where the record contained findings of fact and conclusions of law, but the statement of facts was unavailable. The rule was expressed as follows:

"But it is insisted by counsel for appellants that even although the statement of facts should not be considered by the court in this case, still sufficient error appears in the record to work a reversal of the judgment. An examination of the assignment of errors discloses the fact that the errors relied on by appellants for reversal of the judgment all refer to the findings of fact and conclusions of law made by the court. But this being a cause of equitable cognizance, no findings of fact or of law were necessary. See Kilroy v. Mitchell, 2 Wn. 407 (26 Pac. Rep. 865). It is only in an action at law, where a jury is waived and the cause tried by the court, that findings of fact and conclusions of law are required to be filed. In such cases the findings of fact take the place of the verdict of a jury, and if the conclusions of law drawn from the facts as found by the court are unwarranted, or if the judgment is not supported by the findings, then such judgment will be reversed by the appellate court for error. See Code, §§ 245-7.

"But in an action for equitable relief, the rule is otherwise. Such a cause comes here for trial de novo, and in order to so try it, this court must be put as fully in possession of the whole case as was the court below. The testimony before thesuperior court in this case not having been properly brought up,it is impossible for us to determine what facts are, or are not,proven thereby; and as we must draw our own conclusions from thetestimony we cannot, and should not, be bound by any conclusionsor findings of the court below. It would seem clear that this court cannot try a cause anew upon the merits without being possessed of all the facts upon which the court below acted. If proofs were taken there this court must have the same testimony before it, or a re-trial will be manifestly impossible." (Italics mine.)

Since this case, we have adhered to the rule many times. InState ex rel. Northeast Transportation Co. v. Superior Court,194 Wn. 262, 77 P.2d 1012, it was again considered and reexamined, not only as originally announced but also as interpreted in subsequent cases. The rule was once more reaffirmed. See, also, O'Neal Land Co. v. Judge, 196 Wn. 224,82 P.2d 535.

The condition of the record precludes us from considering any of the questions presented by this appeal. The judgment should be affirmed, because of the absence of the statement of facts.

MILLARD and BLAKE, JJ., concur with SIMPSON, J.