38 Wash. 199 | Wash. | 1905
Lead Opinion
This is an appeal from an order, judgment, and decree of the superior court admitting to probate the will of one Martha J. Holburte, deceased. Rrom the record it appears that appellants filed and served a proposed statement of facts on the 30th day of June, 1904. No ob
“It is ordered that said motion be, and the same is, hereby allowed and granted, and said certificate heretofore 'signed herein to said statement of facts consisting of eighteen pages is hereby amended so as to read as follows:
“State of Washington, County of Lincoln, ss: I, the undersigned, the trial judge in the above entitled cause, do hereby certify that the above and foregoing matters and things are matters and proceedings occurring in said cause and the same are hereby made a part of the record herein. And I further certify that no amendments were proposed by respondent. Appellants except to this order.
“Done in open court this 26th day of October, 1904. “Attest: W. N. Downie, Clerk. C. H. Neal, Judge.”
This order, containing said certificate, was thereupon attached to the said statement of facts, and comes here as a part thereof. No effort appears to have been made by appellants to supply the missing portion, deemed by the trial court as essential to a complete statement of “all the material facts, matters, and proceedings.” The question as to the power of a trial judge to amend his certificate, or to correct a statement of facts after the same has
“The judge may correct or supplement his certificate according to the fact, at any time before an appeal is heard. And if the judge refuse to- settle or certify a bill of exceptions or statement of facts, or to correct or supplement his certificate thereto, in a proper case, he may be compelled so to do by a mandate issued out of the supreme court, either pending an appeal or prior thereto.”
The statute and the prior holding of this court being as stated, it follows that we must, in the ease at bar, be controlled by the final certificate of the trial judge. Prom this certificate it does not appear that all of the material facts, matters, and proceedings occurring upon the trial are con* tained in the statement of facts brought here. On the contrary, reading this certificate in the light of the former certificate, it is evident that the statement does not contain all of such facts, matters, and proceedings. This being true, we are, under the authority of numerous decisions of this court, unable to consider the said statement. Nothing remains but to affirm the order, judgment, and decree of the lower court, providing the findings of fact sustain the same. Appellants make no contention as to the findings being insufficient for this purpose. An exi
Respondent having submitted no amendments, objections, or exceptions to appellants’ proposed statement of facts, but having waited several months before moving for a correction of the trial judge’s certificate, we are disposed to regard his neglect and delay such as should preclude him from recovering costs on this appeal. Costs will be allowed to neither party.
Dissenting Opinion
(dissenting)—I dissent. By failing to propose amendments to the statement of facts at the time and in the manner provided by law, the respondent waived all objections thereto, and should not thereafter he heard to complain that the statement does not contain all the material facts, either in this court or in the court below. To permit a respondent to withhold his objections or amendments at the proper time, and thereafter defeat the appeal by procuring a change in the certificate of the trial judge, is a travesty on justice which I cannot sanction. I think the change in the certificate was in derogation of law and justice, and should be utterly ignored by this court.