3 Wash. 476 | Wash. | 1892
The opinion of the court was delivered by
The respondent moves to strike the statement of facts because the judge before whom the cause was tried settled the statement after he had gone out of office, and, under the authority of Faulconer v. Warner, 2 Wash. 525 (27 Pac. Rep. 274), the motion must be granted. But appellant contends that he has lost his right of appeal in this case without any fault of his, and that under such circumstances this court should grant him a new trial. He cites us..to a number of cases where courts of last resort in other states have upon such grounds granted new triáis. But his application fails to make a case for such action upon our part in two particulars: First, The cause was determined in the lower court more than two months before the judge went out of office, by the expiration of his term, and there is no showing of diligence in the matters connected with the settlement of the statement. Furthermore, no application was made to the superior court to have the facts settled. Our statute provides that the party desiring to settle a statement shall apply to the “court or judge who tried the cause.” It can hardly be supposed that the words “court” and “judge” were both intended
The motion to strike the statement is granted and, as there is nothing left upon which error can be founded the judgment is affirmed.
Hoyt and Stiles JJ., concur.
Dunbar, J., concurs in the result.
Anders, O. J. — For the reasons given in the case of Faulconer v. Warner, I am constrained to dissent.