concurring in the result.
I concur in the result on the ground that the court’s findings are sustained by a preponderance of the evidence.
LATIMER, Justice,concurring in the results.
I concur in the results.
Because my reasons for affirming the judgment are, in part, different from those expressed in the court’s opinion, I prefer to separately state why I believe the appellants’ contentions should be overruled. I have no dispute with the legal principles announced by the court’s opinion, and concur on all grounds except the one treating with the defense of laches. I am unable to ascertain in what manner that issue was raised in the court below and why we decide an appeal on an issue not considered by the trial judge.
Briefly stated, the record reflects the following proceedings and actions: Plaintiff filed a complaint in which he alleged the creation of a trust, that the defendant was the trustee, that he was the personal representative of the *104cestuis, and that the defendant had breached the trust agreement. The defendant bank filed a demurrer assailing the complaint in many particulars, one ground being that the cause of action was barred by certain sections of the Utah statutes dealing with limitations. However, it does not appear from the face of the complaint that the cause of action was barred, even though it appears an unusual length of time had elapsed between the death of the deceased and the filing of the complaint. The demurrer was over-ruled, and, upon failure of the defendant to answer, the trial court entered an order of default and a further order requiring it to file an account of its administration of the trust. Subsequently, the default was set aside, the court appointed a referee to hear the accounting, and the matter came on for hearing before him. After an extensive hearing, the referee made findings of fact and conclusions of law in which he found and concluded that the bank had fully accounted for all sums of money and property coming into its possession, that in the few instances where records were not available the bank should be excused for failure to produce because of the lapse of time, and that plaintiffs’ cause of action should be dismissed. The defendant thereupon moved the trial court for an order approving the report of the referee and for a judgment in its favor of no cause of action. The court, pursuant to the petition, adopted the findings of the referee, adjudged that the defendant had accounted in full for the trust property and every part thereof, dismissed the complaint and entered judgment for the defendant. Plaintiffs appealed from that judgment.
Insofar as I can ascertain from the search of the records, an answer was not filed by the defendant and the defense of laches was not raised by motion or otherwise. It is true the bank, in its brief in this court, contends that the trial judge erred in not sustaining the demurrer, but the record at the time the demurrer was considered by the court was such that the motion was then properly overruled. No doubt the evidence taken before the referee would have *105permitted a finding that laches barred plaintiffs’ cause of action, but this issue was not passed on by either the court or the referee.
I concur in the results for the reason that even though laches may not be considered to sustain the judgment, the evidence does not. preponder ate against the findings of fact made by the referee and adopted by the court; the conclusions are supported by the facts; and, therefore, the judgment should be affirmed.
CROCKETT, J., concurs in the result.