Santos v. Mack

Per Curiam.

Appellants made two assignments of error. ■The second one is:

“2. The Court erred in entering judgment awarding the disputed strip of ground to the respondents without finding that the respondents had satisfied the requisites for establishing title by adverse possession.”

The assignment is not well taken. The trial court’s finding of fact No. 2 fully establishes all the requisites for adverse possession.

Appellants’ first assignment was directed to the trial court’s memorandum opinion. The respondents’ brief answered:

“The court’s memorandum opinion is not a finding of fact, McIntyre v. Johnston, 63 Wash. 323, and where findings of fact are entered by the court the court’s memorandum opinion is not a subject for appeal.”

Appellants, conceding the soundness of respondents’ position, then moved this court for permission to amend their first assignment of error by directing it to the trial court’s finding of fact No. 2.

This court postponed ruling on the motion until after a hearing on the merits, The appellants made their amended assignments of error and set out the trial court’s second finding of fact verbatim in their reply brief. The motion is now before us for decision.

In Paulson v. Higgins, 43 Wn. (2d) 81, 260 P. (2d) 318, 266 P. (2d) 800, in which appellants had moved this court for leave to file an amended opening brief to cure the failure to assign error to the trial court’s findings of fact, we denied the motion and said:

“If there is to be a rule, there must be a point at which failure to comply therewith can no longer be corrected. That point is the filing of respondent’s brief.”

We adhere to the rule of Paulson v. Higgins, supra.

The motion is denied, and the judgment is affirmed.