EARL v. GEFTAX, 43 Wn.2d 529 (1953)

262 P.2d 183

JOE E. EARL et al., Appellants, v. S.A. GEFTAX et al., Respondents.[1]

No. 32402.The Supreme Court of Washington. Department One.
October 21, 1953.

[1] JUDGMENT — NATURE AND ESSENTIALS — DISTINGUISHED FROM ORAL DECISION. An oral decision is not a judgment, and the trial court can freely change its mind until a formal judgment is entered. [2] APPEAL AND ERROR — PRESERVATION OF GROUNDS — MOTION FOR NEW TRIAL. Where the appellants did not move for a new trial below, they cannot ask for one in the supreme court for the first time. [3] SAME — ASSIGNMENT OF ERRORS — ERRORS NOT ASSIGNED IN BRIEF — FINDINGS. Where the appellants made no assignments of error directed to the findings of fact and conclusions of law, the supreme court will assume that they are supported by the record. [1] See 30 Am. Jur. 824.

Appeal from a judgment of the superior court for King county, No. 435203, Hodson, J., entered October 17, 1952, upon findings in favor of the defendants, in an action for rescission, tried to the court. Affirmed.

Chavelle Millard, for appellants.

Riddell, Riddell Williams, for respondents.

Page 530

PER CURIAM.

This is an action in fraud to rescind the sale of a half interest in a furniture store. On June 19, 1952, at the conclusion of the trial, the court orally announced that it would grant a judgment for the plaintiffs in the amount of seven thousand dollars. No findings of fact and conclusions of law or judgment were ever entered in conformity with the oral decision.

The respondents interposed a motion for a new trial or for judgment notwithstanding the oral decision, and supported it by affidavits, to which appellants objected. Appellants declined respondents’ offer to afford them an opportunity for cross-examination about them. After considering the motion, the trial court changed its mind and entered a judgment for respondents.

Appellants did not move for a new trial, but appealed from the judgment, and make the contention that:

“The Trial Court’s first oral decision was correct, and the Trial Court should be ordered to enter judgment for the plaintiffs as indicated therein.”

No other relief is sought.

Appellant’s assignments of error assert irregularities in receiving and considering evidence in the form of affidavits, after the conclusion of the trial without reopening the case.

Assuming, without deciding, that error was committed in this regard, nevertheless this court cannot give appellants the relief sought.

[1] An oral decision is not a judgment. Fogelquist v. Meyer, 142 Wn. 478, 253 P. 794; Lasell v. Beck, 34 Wn.2d 211, 208 P.2d 139. The trial court can freely change its mind until a formal judgment is entered. State v. Goard, 32 Wn.2d 705, 203 P.2d 355; Lasell v. Beck, supra.
[2] Appellants did not move for a new trial below, and did not and cannot ask for one here for the first time. Vermont Farm Machine Co. v. Lamka, 94 Wn. 622, 162 P. 984; Corbaley v. Pierce County, 192 Wn. 688, 74 P.2d 993. That form of relief is, therefore, not available to appellants. [3] Appellants make no assignments of error directed

Page 531

to the findings of fact and conclusions of law. We must, therefore, assume that they are supported by the record. State ex rel. Schoblom v. Anacortes Veneer, Inc., 42 Wn.2d 338, 255 P.2d 379; Paulson v. Higgins, ante p. 81, 260 P.2d 318. They support the judgment. We do not reach the merits on the record before us on appeal.

The judgment is affirmed.