No. 209 | Wash. | Dec 1, 1891
Lead Opinion
The opinion of the court was delivered by
The respondents move to dismiss the appeal in this case, because the judge who tried the cause settled the statement of facts after he had gone out of office. We have heretofore decided, in the case of Faulconer v. Warner, 2 Wash. 525 (27 P. 274" court="Wash." date_filed="1891-07-07" href="https://app.midpage.ai/document/faulconer-v-warner-4724222?utm_source=webapp" opinion_id="4724222">27 Pac. Rep. 274), that an ex-judge has no authority to settle the statement of facts, and we granted a motion to strike the statement in that case, for that reason. Here the respondents have not asked to have the statement stricken, but to have the appeal dismissed. It, of itself, affords no ground for dismissing the appeal and cannot affect the right of appellant to have the remainder of the record here, and to argue upon the merits any question which it may present. True, the striking of a statement may leave no question in the record for the court to consider, and after a statement is stricken, if the respondent should move to dismiss the appeal upon that ground, and said motion should be well founded in fact, it would be granted; otherwise, if no such motion was made by either party, the judgment would be affirmed, as was done in the case above cited. It is argued that there is no question presented by the record in this case outside of the state
But there is a distinction to be recognized between those rights expressly conferred by direct legislative enactment, where the intention to confer is thus apparent, and those wherein the right is more in the nature of an advantage a party may take by reason of some defect in the law or oversight in legislation such as the present one, and it seems to hs that this is not a case where the rule as to liberal construction can be invoked. Such a rule should only operate in furtherance ofjustice,in which case the law looks tolerantly on mistakes, and undertakes to give effect to the manifest intendment. Here the moving party is seeking to prevent a hearing upon the merits by undertaking to avail himself of an irregularity in the proceedings not going to the jurisdiction, and one which did not arise by reason of any negligence of the other party. Brewer, J., in
“It is enough to state this here, as applicable generally: That if ever a party has obtained through legal proceedings an unjust advantage, and inj those proceedings has made a mistake, be it ever so trivial, the law will not tolerate an amendment to secure him in his advantage. To such an one the law is a Procrustean bed, and to its exact requirements every proceeding must, at his peril, conform.”
And the same rule would apply to the case of this motion. The question of construction does not enter into the matter at all. The motion is not ambiguous. It asks that the case be dismissed, and to this the party is not entitled in an action at law upon the premises he has stated. Under the circumstances, it should not be treated as amended, and no intendment should be taken in its favor, nor will we look into the record to see what would be the effect upon the case if the statement should be stricken. It is the simple question of granting or denying this motion to dismiss which we have before us at this time. It is denied, and the cause allowed to proceed upon the merits.
Hoyt and Stiles, JJ., concur.
Dissenting Opinion
(dissenting). — I am unable to agree with the reasoning of the majority, or with the conclusion reached by them. I think that the distinctions sought to be made are more fanciful than real. The code provides that the court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not effect the substantial rights of the adverse party, and that before the prevailing party shall be put to the trouble and expense of a trial of his cause in the supreme court, the statement of facts shall be settled, and prescribes the manner in which it shall be settled.. This is a protection given by law to the respondent, and he is as much justified in insisting on this right as any other. If a complaint
Anders, O. J,, concurs.
Opinion on the Merits
ON THE MERITS.
This was a proceeding instituted by the appellant for the appropriation of certain lands for a right-of-
The respondents contend that the law does not require the petitioner to describe any land except that proposed to be taken for the right-of-way itself, and that they were not required to answer at all, and that, consequently, they were entitled to offer proof of the damage to the whole tract; but we think this claim is untenable, under the circumstances of this case, however the law may be as to the description required to be set forth or as to the pleadings required. Here the respondents did answer and raise an issue as to the amount in which they would be injured, re-
A point is made as to the basis upon which the respondents were allowed to recover damages, which was the value of the land at the time of its appropriation. The appellant contends, and there was testimony to show, that this land was considerabty enhanced in value in consequence of this projected line of railway which was then in process of construction. The appellantcontendsthattliis increased value, which was due to the building of the very road for which the right-of-way through this land was sought, and to nothing else, should not have been taken into consideration in estimating the damages; while the respondents claim that they were entitled to have this considered by virtue of § 16, art 1 of our state constitution, which provides that compensation in such cases shall be ascertained “irrespective of any benefit from any improvement proposed by such corporation.” The position taken by appellant is the correct one. The basis for the estimation of the damages is the value of the land as it would be at the time of the appropriation, if the road was not to be built. The constitutional provision referred to only provides that the benefits, if any, of the proposed improvements shall not be allowed to offset or diminish the damages sustained. If the prospect of this proposed road had greatly enhanced the value of the respondents’ land as claimed, it would be highly inequitable
Judgment reversed.
Anders, O. J., and Hoyt and Stiles, JJ., concur.
Concurrence Opinion
I concur in the result, because I think the defendant, after having alleged the damage to be to a certain described tract of land, ought not to have been allowed to prove damage to any other land. The plaintiff, under the pleadings, had a right to presume that the issue to be tried was the damage to the land specified in the answer, and it was the trial of that question that he was called upon to prepare for, but I cannot accept the construction of the majority on section 16 of article 1 of the state constitution. I do not think the constitutional provision contemplates so general a benefit as is claimed for it by the majority, but that it is some particular benefit conferred upon the land that is referred to. I do not think it intends to compel a person to part with his land for a less consideration than the same kind of land similarly situated in the same neighborhood or locality is worth. Such a