
    [No. 5278.
    Decided April 12, 1905.]
    City of Ballard, Appellant, v. John McFarlane Mitchell et al., Respondents.
      
    
    Appeal and Erbob—Recobd—Opening Statement of Counsel— Review. Where findings of fact are based upon the opening statement of counsel, which, is not preserved in the record, exceptions to the findings cannot he considered on appeal.
    Appeal from a judgment of the superior court for King county, Bell, J., entered April 7, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a lien for street assessments.
    Affirmed.
    
      John W. Whitham, for appellant.
    
      William G. Keith, for respondents.
    
      
      Reported in 80 Pac. 440.
    
   Per Curiam.

It appears from an examination of the record in this case that the court below made its findings of fact and conclusions of law, and entered its decree, upon the opening statement of counsel for plaintiff. Such opening statement has not been preserved by a statement of facts or bill of exceptions, and is not before us. We therefore cannot consider the exceptions to the findings of fact. Johnson v. Spokane, 29 Wash. 730, 70 Pac. 122.

The plaintiff’s cause of action is founded on the same assessment as was before this court in the case of Ballard v. Ross, ante, p. 209, 80 Pac. 439, just decided. The answer contains the same affirmative defense as was considered and sustained in that case. The court below found the facts in accordance with the allegations of the affirmative defense in the answer, and dismissed the action. From the order of dismissal this appeal is taken.

On the authority of the case of Ballard v. Ross, supra, the judgment is affirmed.  