Dissenting.
I dissent. It is entirely clear from the record that respondent has for a period of many more than five years prior to the commencement of the action been in open, notorious, exclusive and adverse possession of the property in controversy, and, as indicated by our former opinion, sec. 4036, Rev. Codes, applies to this case. It is also entirely clear from the record that for a period of more than five years neither of appellants has, in any sense, been in possession of said lands or any part thereof, and they are precluded, by see. 4037, from making the defense here sought to be made. Therefore, this contention presents a question of law rather than of fact, and it does not appear to my mind that any findings by the trial court would materially aid this court in determining it.
Nothing I could say would add weight to what has already been said in our former opinion upon the defense of laches.
It appears to me that although the trial court might have, and probably should have, made findings with respect to these defenses, no substantial right of appellants has been affected by its failure to do so, and a reversal of the judgment cannot benefit them nor result in anything other than useless expense to the litigants.
The case as it now stands is exactly in point with a long line of decisions by this court construing sec. 4231, Rev. Codes, wherein it is provided that “The court must, in every stage of an action, disregard any error or defect in the pleadings or proceeding's which does not affect the substantial rights of the parties and no judgment shall be reversed or affected by reason of such error or defect.” (Empire Mill Co. v. District Court, 27 Ida. 383, 149 Pac. 499; Schultz v. Rose Lake Lumber Co., 27 Ida. 528, and cases therein cited on pages 533 and 534, 149 Pac. 726; and Cady v. Keller, ante, p. 368, 154 Pac. 629.)