
    [No. 4534.
    Decided March 14, 1903.]
    Joshua Pierce et al., Appellants, v. Angelo V. Fawcett, Respondent.
    
    APPEAL-NECESSITY FOE STATEMENT OF FACTS-QUESTIONS PRESENTED BY RECORD.
    An appeal will be dismissed because of the ahsence of a statement of facts, although the appellant seeks only the review of a question of law on the pleadings as to whether the action appeared therefrom to have been commenced in time, where the judgment of the court recites that the decision was based on other matters before the court as well as upon the application of the statute of limitations to the facts pleaded.
    
      Appeal from Superior Court, Pierce County. — Hon. Thad Huston, Judge.
    Appeal dismissed.
    
      Stiles & Doolittle, for appellants.
    
      John C. Stallcup, for respondent.
   Pee Curiam.

— This is an action brought to recover upon a covenant of warranty, it being alleged tbat tbe grantors bad no title to the tide land conveyed. Tbe judgment was for respondent.

Tbe respondent moves to dismiss tbe appeal herein for the reason that no statement of facts has been made or preserved, showing tbe evidence or any part thereof, and tbat the findings of fact justify the judgment of the court. It is contended by tbe appellants tbat no statement of facts is necessary, in tbat it is purely a question of law which is raised by this appeal, viz,, the question of when the statute of limitations began to run. If this were true, as shown by the record, of course, no statement would be necessary; but, considering tbe pleadings and tbe findings of fact in this case, we do not feel warranted, in tbe absence of a statement of facts, in disturbing the judgment. The answer denies that the plaintiffs, their predecessors or grantors, were ever ousted or ejected from the premises, or any portion thereof, by the state of Washington or any one else, and alleges that the state of Washington has never asserted any claim against them, or their right and title in and to said premises; that defendant purchased from the state of Washington all right, title, claim and interest of said state in and to the said premises in the complaint described, and thereby protected the said plaintiffs against all claims of right, title, or interest in said premises, and tendered to the plaintiffs the benefit of said title. Tbe court found, in addition to tbe finding that tbe action bad not been commenced in time, that in open court, upon the argument of tke cause, tke counsel for plaintiffs announced tkat plaintiffs were satisfied tkat they were not entitled to a rescission of tke contract of sale created ky said deed; that at tke date of tke execution and delivery of said deed, tke title to tke tide and overflow lands described in tke complaint was in tke United States of America, and tkat tke constructive- possession of tke premises was in tke United States at tke time of tke execution and delivery of tke deed; tkat tke defendant, Angelo V. Fawcett, did, subsequent to tke commencement of this action, ky contract, purchase from tke state of Washington its claim of right in and to said land, and has made all tke payments therefor in full; tkat.no demand had ever keen made upon plaintiffs or their grantors for any disclaimer or surrender of said premises, or any part thereof — and concludes as follows: “Tkat for these and other reasons apparent, tke said Angelo V. Fawcett is entitled to a judgment of dismissal, and for kis costs and disbursements herein.”

Considering tke many questions raised in tke pleadings in tkis case, and tkat tke judgment of tke court might have keen warranted, even conceding tkat it erred in relation to tke single question of tke statute of limitations, we think tkat we would not be justified in disturbing tke judgment, and tkat tkis case falls within tke rule announced in Johnson v. Spokane, 29 Wash. 730 (70 Pac. 122). In tkat ease tke finding of tke court was as follows:

“The above entitled cause having on tke 15th day of June, 1901, come on regularly for hearing before tke court and a jury duly impaneled and sworn, and tke court having heretofore sustained a challenge to tke legal sufficiency of the evidence disclosed to said jury by tke opening statement of counsel for plaintiffs, and having sustained an objection to tke introduction of any evidence by plaintiffs for the reason that the defendant is entitled to judgment on the pleadings and on the opening statement of counsel for plaintiffs, . . . it is therefore ordered . that the above entitled action be, and the same is hereby, dismissed.”

It was there held that, in the absence from the record of the opening statement upon which the court acted, this court would not be justified in reversing the cause; that all presumptions were in favor of the judgment; and that hence we could not conclude that the court erred in dismissing the cause upon the statement of counsel, without the opportunity of investigating that question, the record not having brought up the statement of the counsel in question. And so here, this court not being advised of what the reasons were that were apparent to the court why the defendant was entitled to judgment of dismissal, it is impossible to review them, and, in the absence of the record showing the contrary, the conclusion rqust be that they were good and sufficient reasons.

The motion will be sustained, and the cause dismissed.  