55 Wn.2d 907, RADIANT GLASSHEAT OF TACOMA, INC., Respondent, v. ERNEST P. SEKOR et al., Appellants
[No. 34941. Department One. Supreme Court February 4, 1960.]
RADIANT GLASSHEAT OF TACOMA, INC., Respondent, v. ERNEST P. SEKOR
et al., Appellants.1
Appeal from a judgment of the Superior Court for Pierce county No. 132557, John D. Cochran, J., entered July 31, 1958, upon findings in favor of the plaintiffs, in an action to foreclose a materialman's lien and cross-action for damages resulting from a breach of a contract. Affirmed.
Elvidge, Watt, Veblen & Tewell, for appellants.
Albert & Andrews, for respondent.
PER CURIAM. -
On December 10, 1956, the parties entered into a contract by the terms of which the plaintiff was to furnish and install radiant heat panels for one thousand seven hundred fifty dollars in the house the defendants were constructing.
The plaintiff filed a materialman's lien and this is a foreclosure action for the contract price. The defendants counter-claimed for poor workmanship and failure of the electric panels to adequately heat the house.
The trial court gave a judgment of foreclosure for the contract price less a set-off of forty-eight dollars. The defendants appeal and, in effect, seek a trial de novo in this court.
No questions of law have been presented by this appeal. Such divergent versions of the facts were presented to the trial court that the party whose facts were accepted is entitled to prevail.
We are not prepared to hold that the evidence clearly preponderates against the trial court's findings of fact. Indeed, the credibility of witnesses, who were observable by the trial court only, is more decisive than usual as to the disputed facts. An examination of record reveals adequate support for the judgment.
The judgment is affirmed.
WEAVER, C. J. (concurring) - I concur in the result for the reasons stated in Croton Chemical Corp. U. Birkenwald, Inc., 50 Wn. (2d) 684, 314 P. (2d) 622 (1957).
1 Reported in 348 P. (2d) 976.
55 Wn.2d 908, HELEN C. BEAGLE, Plaintiff v. HARVEY L. BEAGLE, Defendant and Relator, THE SUPERIOR COURT FOR KING COUNTY, William J. Wilkins, Judge, Respondent In the Matter of the Welfare of Johnette Goudie, A Minor
[No. 35194. Department Two. Supreme Court February 4, 1960.]
HELEN C. BEAGLE, Plaintiff v. HARVEY L. BEAGLE, Defendant and Relator,
THE SUPERIOR COURT FOR KING COUNTY, William J. Wilkins,
Judge, Respondent.1
Motion filed in the Supreme Court January 6, 1960, to strike a statement of facts. Denied.
Cartano, Botzer & Chapman (Robert A. O'Neill, of counsel), for plaintiff.
Zundel, Merges, Brain & Isaac, for defendant and relator.
PER CURIAM. -
Respondent moves to strike the statement of facts from the record on appeal for the reason that it was not timely filed, in accordance with Rule on Appeal 34, RCW, Vol. 0. The proposed statement of facts was filed more than ninety days after entry of the decree. No application for extension of time for filing was filed within the ninety-day period, or at all. See Beagle v. Beagle, ante p. 174, 346 P. (2d) 689 (1959).
In the exercise of our discretion (since the timely filing of a statement of facts is no longer jurisdictional), we deny the motion to strike the statement of facts; but, pursuant to Rule on Appeal 7, RCW, Vol. 0, we impose upon appellant's counsel, for failure to observe the Rules on Appeal, terms of one hundred dollars to be paid to respondent's counsel as attorney's fees.
It is so ordered.
1 Reported in 348 P. (2d) 976.