
    MANSFIELD v. SINALOA LAND & FRUIT CO.
    No. 2492.
    Decided August 16, 1913
    (134 Pac. 1017).
    1. Appeal and Error — Review—Findings. In the absence of the evidence, findings of fact are not reviewable. (Page 418.)
    2. Appeal and Error — Review. There is nothing for review, the case being presented and tried below on one theory and argued on appeal on another, wholly foreign to the pleadings and the entire judgment roll, and not even within the assignments of error. (Page 418.)
    Appeal from District Court, Third District; Hon. O. W. Morse, Judge.
    Action by M. W. Mansfield against tbe Sinaloa Land & Fruit Company.
    Judgment for defendant. Plaintiff appeals.
    AFFIRMED.
    
      
      A. A. Duncan for appellant.
    
      N. V. J ones for respondent.
   STBAUP, J.

There is nothing to this appeal. In the complaint it is alleged that the plaintiff is the owner of 103 shares of the capital stock of the defendant, a corporation; that without “legal notice” a meeting of the stockholders was called and held to authorize the board of directors to levy an assessment; that the board without “legal notice” levied the assessment and without notice to him declared it delinquent and ordered his stock sold for nonpayment of the assessment; and that “a portion of a previous assessment had not been paid.” On these grounds and no other the plaintiff asked that the sale of his stock be enjoined. On these issues the case was tried to the court, who found all of them in the defendant’s favor. Judgment was entered accordingly denying the relief prayed for ánd dissolving the temporary restraining order theretofore issued. The plaintiff appeals on the judgment roll without a bill of exceptions. So all we have before us are the pleadings, the findings, and the judgment.

The first assignment is the court erred in finding “that plaintiff has not paid the assessment upon said stock, nor any part thereof, and that the assessment, together with the costs of advertising the same, remained due and payable to the defendant.”

Since the evidence is not here, the finding is not reviewable. The other assignments relate to conclusions that the court erred in denying the plaintiff injunctive relief. But again the court denied him such relief on con-elusions based on findings that the allegations of the complaint, and upon which the plaintiff sought his relief, were not sustained and were untrue and on findings of facts flatly contradicting those averred in the complaint. And in his brief not a thing presented by the complaint is ■ discussed. The whole of it is devoted to a discussion that fully paid-up and issued capital stock of a corporation is not assessable for any purpose, though the articles of incorporation provide for assessments, and though the assessment was authorized by a majority of the stock represented at a meeting of the stockholders called for that purpose. So the case was presented and tried to the court below on one theory and is argued here on another (aegrescitque medmdo) wholly foreign to the pleadings, the entire judgment roll, and not even within the assignments of error.

Let the judgment be affirmed, with costs. Such is the order.

McGARTY, 0. J., and FRICK, L, concur.  