21 Wash. 365 | Wash. | 1899
The opinion of the court was delivered by
The relators were defendants in an action tried in the superior court of the county of Clallam, at which Hon. E. D. Benson, one of the judges for the superior court of the county of King, presided. Judgment was entered for the plaintiff in the action on the 29th day of Hoy ember, 1898. On the 14th day of January, 1899, the relators, desiring to appeal from the judgment, served upon plaintiffs’ attorney a motion for an extension of time in which to file and serve a statement of facts in the cause, and therewith a notice to plaintiff that they would call up said motion for hearing on the 18th day of January, 1899, in the city of Port Angeles, before the Hon. James G-. McOlinton, who is the regularly elected judge for Clallam county. In answer to the motion, the
The answer to the application presents two questions: Was the order of Judge HcClinton valid ? And, if valid, was the service of the proposed statement of facts in time ?
The learned counsel who represents the defendant here contends that a proper construction of the statute as a whole shows that an order granting an extension of time in which to file and serve a statement of facts can only be made by the judge who tried the cause. He argues that in granting an extension the court or judge exercises a discretion which may be reviewed on appeal; and inasmuch as the statute (§ 5057, Bal. Code) provides that only one bill of exceptions can be certified after final judgment, and which must be certified by the judge before whom was tried the main issue, there is no way of getting the order up for review unless it is made by that judge; and, also, that the language of the particular section empowering the court or judge to grant an extension supports the contention that only the judge who tried the cause can -make the order. The first part of the objection seems to us more fanciful than real. If it be true that the opposing party has the right to review the discretion exercised by the court in granting an extension of time in which to file and serve a statement of facts, it must be because it is an “order made after judgment which affects a substantial right.” If it is such an order, then the party aggrieved by it must appeal from it in order to have it reviewed; in which case we know of no reason why he might not have the judge who-granted the order .certify to such a statement as would enable him to properly present the error assigned. It is needless to say that this court will not review the discretion exercised by the lower court in granting an exten
The order of Judge McOlinton g’ranted the relators-“to the 28th day of January, 1899,” in which to file and serve a statement of facts. The statement was filed on the 27th of January and served on the 28th of that month, and the service, the defendant urges, came' too late to comply with the order. Whether the words “to,” “till” or “until” will he held to be words of inclusion or exclusion is usually determined by the context of the statute or instrument in which they are used, and will be held to include or exclude the day named, as the evident intention requires. In an order of this kind, we think the word includes the date. Por example, had the court, on the 21st, granted the moving party “to the 22d” to serve the statement (and similar cases are not of infrequent occurrence), no one would have seriously doubted that a service on the 22d would have been in time to have complied with the order. Aside from this, the objection is highly technical; too much so, in fact, upon which to deny so substantial a right as the right to an appeal.
The writ will be granted.
Gobdoet, O. J., and Duetbae, Aetdebs and Reavis, JJ., concur.