51 Wash. 239 | Wash. | 1908
— This is an application for a writ of mandamus. It appears from the record that four certain causes were at issue and pending for trial in the superior court of Chelan county, which the court consolidated for trial as one action. The parties thereupon stipulated in writing that the consolidated action should be submitted upon its merits at a day therein named, in the
“following manner to wit: Upon the pleadings now on file in said several causes of action, as consolidated in said suit No. 3, it being understood that the complaints filed by the several plaintiffs in each of said suits, is to be considered as evidence, and the answers, cross-complaint and interpleaders filed by Leonard Fowler and Mary B. Fowler his wife, are also to be considered as evidence, and the actions thus consolidated are to be submitted on the issues thus joined and the evidence thus submitted under this stipulation.”
The statute relating to the certification of statements of fact for the purpose of an appeal provides that a party desiring to have such a statement certified must prepare the same as proposed by him, file it in the cause, .and serve a copy thereof on the adverse party, and written notice thereof on any other party who has appeared in the cause. Within ten days after such service, any party to the cause may file and serve on the proposing party any amendment which he may propose to the statement. Any party may then serve upon the others written notice that he will apply to the judge of the court before whom the cause is pending or was tried to have the statement settled and certified, at which time, or at such time as the hearing may be adjourned, the judge shall settle and certify the statement. It is further provided that, if no amendments to the statement be proposed, or if amendments be proposed which the other party accepts, the judge may settle the statement without notice to any other party. Bal. Code, § 5058 (P. C. § 675).
The procedure herein provided for, it will be noticed, does
In the case at bar, the court in his return does not deny the necessity of a statement of .facts to properly present the case in this court; on the contrary, he states that he has been ready and willing at all times to certify to a proper statement of facts, and avers that he has not been requested to certify a proper statement and no proper statement of
A writ of mandate will issue directing the lower court to vacate the order striking the proposed statement of facts, with instructions to proceed thereafter as indicated in this opinion.
Rudkin, Mount, and Crow, JJ., concur.