Queen City Bank v. Danz

This action is based upon a promissory note. The cause was tried to the court without a jury and resulted in a judgment of dismissal from which the plaintiff appeals.

[1] No bill of exceptions or statement of facts has been brought to this court. The only question, therefore, is whether the findings support the judgment. The complaint alleged that the appellant held the note as collateral security. The findings recite that the appellant was the owner and in possession of the note. Whether, when the complaint alleges that a note is held as collateral security and the evidence shows that the plaintiff was the owner, this constitutes such a variance or failure of proof as will justify a judgment of dismissal, it is not necessary here to determine and we express no opinion thereon. The case being here upon the findings, there is a presumption that the evidence introduced upon the trial supports the same and, if need be, that the pleadings were amended to conform thereto. There being no bill of exceptions or statement of facts, we do not know what may have taken place in the way of amendment, stipulation or otherwise during the trial. Under the facts found, the appellant should have been given judgment on the note. This case is not different in principle from the recent case of Whitney Chevrolet Co. v.Hatch, 146 Wash. 440, 263 P. 602, where it was said:

"The appellant invokes the general rule that a judgment upon issues not made by the pleadings is erroneous, and may be set aside or reversed in a proper proceeding for that purpose. This rule, however, is not applicable in the present case, because, there being no statement of facts or bill of exceptions, it will be presumed that the evidence introduced upon the trial supported the findings, and the pleadings will be deemed amended to conform thereto. Pierce v. Pierce, 52 Wash. 679, 101 P. 358; Holdenv. Romano, 61 Wash. 458, 112 P. 489; McCreery v. Carter,73 Wash. 394, 131 P. 1125."

It follows that the judgment must be reversed, and the cause remanded with direction to enter a judgment in favor of the appellant.

FULLERTON, ASKREN, and HOLCOMB, JJ., concur.