No. 5529 | Wash. | Sep 13, 1905
This is an action for divorce, in which the wife is plaintiff. A decree of divorce was entered in her favor, and a disposition of property was made. Defendant has appealed. Despondent has moved to strike the statement of facts upon the ground that it is not indexed in accordance with rule 3 of this court. The statement contains one thousand three hundred and sixty-one pages of type- ■ written matter. A number of witnesses were examined and some were frequently recalled, but there is no index showing who testified, or upon what ones of the numerous pages the testimony of any single -witness may be found. For such an omission to comply -with a well-known rule, in a case containing such a large amount of testimony, we believe the court would be justified in imposing terms, or in even refusing to consider the statement, altogether’. But, in view of the record and of the disposition that must be made of the case, we shall pass over that ground of the motion. The condition of the record is such that it relieves us of a laborious search through the entire mass of testimony, and for that reason alone we pass over this subject.
Despondent also moves to strike the statement of facts for the reason that no exceptions were taken to the findings of facts or conclusions of law. We find no written excep>tions in the record, except the following memorandum which appears at the close of appellant’s proposed findings of facts and conclusions of law:
“The above findings of -fact except so far as they are duplicated in findings signed, refused. Conclusions of law*123 refused. Defts. except & exception allowed. Dated June 29th, 1904. A. G-. Kellam, Judge pro tem.”
Under repeated decisions of this court, the above is not sufficient, it being merely general, and specifying no particular finding that was either made or refused concerning which exception is taken.
Appellant’s counsel refer to a certain colloquy between court and counsel, which is set forth in the statement of facts, from which they urge that it appears that they were excepting to the court’s findings and to its refusal to find as proposed. The conversation was merely of a general character concerning’ what the court should find. Such a record is wholly insufficient as furnishing the definite exceptions required. There were no exceptions filed in writing at any time, and no definite ones appear by the record to have been stated to the trial court at the time the findings were signed, so as to be clearly understood by that court, or by this one, as required by Bal. Code, § 5052.
Under such circumstances, this court has in some instances stricken the statement of facts. In the recent case of Lilly v. Eklund, 37 Wash. 532, 79 Pac. 1107, it was, however, held that, for failure to except to the findings, the statement would not be actually stricken, but that it would be held and considered for the sole purpose of reviewing that portion of it which had to do with the action of the court in excluding evidence offered by appellants. Poliowing the rule there adopted, we decline to strike the statement now before us, but shall consider it for said purpose only.
Appellant presents but two' assignments of error concerning the exclusion of testimony offered by him. The first relates to the offered testimony of certain witnesses as bearing upon the character of a woman who had testified in the case, and whom appellant sought to impeach. The assignments in the brief refer to designated portions of the statement of facts, which we have examined. One witness interrogated stated that he merely knew the woman by sight,
The other assignment is to the effect that the court should have required respondent to produce a certain subpoena, together with the officer’s return of service thereof, which subpoena the said female witness had testified was served upon her by an officer. It is appellant’s theory that she was not served with the subpoena by an officer, and that a conversation between her and such officer, of which she testified, did not occur. The record shows that the court refused to go further into details concerning the character and testimony of said female witness, for the reason that it believed that it was already sufficiently advised. The court expressly stated that, whatever might be the effect of the testimony of said witness, it would make no difference so far as its action in the case was concerned. The remarks of the court indicated that it attached no weight to the testimony of said witness as against appellant, and that it was not so considered. The production of the excluded imjjeaehing evidence would not, therefore, have strengthened appellant’s position in the mind of the trial court and we are satisfied that it would not have changed the result in this court. It was therefore not prejudicial error to exclude the testimony under such circumstances.
The judgment is affirmed.
Mount, C. J., Fullerton, Dunbar, and Root, JJ., concur.