7 Wash. 358 | Wash. | 1893
Lead Opinion
The opinion of the court ivas delivered by
This is a petition for a writ of mandamus. The petition alleges that an action for the foreclosure of a mortgage, in which petitioner was plaintiff and B. Martin and Mary Martin, his wife, were defendants, was tried on the 23d day of May, 1893, and on said day a decree was duly rendered and signed by Jesse Arthur, judge of Spokane county aforesaid; that on the trial of said cause petitioner, B. Martin and wife, and several other witnesses on the part of both plaintiff and defendants, testified and gave evidence, but that none of the testimony was reduced to writing; that Messrs. Herman & Wilson, attorneys, represented defendants at the trial of said cause; that on the 21st day of June, 1893, a paper purporting to be a copy of a statement of facts in said action was served on Messrs. Jones, Belt & Quinn, attorneys for the petitioner in said action; that on the 22d day of June, 1893, a paper purporting to be a statement of facts in said cause, and the original of the copy served on the .petitioner’s attorneys, was filed in said cause, but that neither of said papers was addressed to the petitioner or to his said attorneys, and neither of said papers was signed or subscribed by either said B. Martin or his wife, or by his said attorneys, or by any attorney, or by any person; that afterward, on the 6th day of July, 1893, a notice of appeal in said action to the supreme court, signed by Messrs. Prather & Danson, as attorneys of said B. Martin and wife, was served upon petitioner's attorneys, and an appeal bond was also, on the said 6th day of July, 1893, filed in said cause by the said B. Martin and wife; that no notice of substitution or change of attorneys in
“I, Jesse Arthur, the judge of said court before whom said cause was tried, do hereby certify that the matters and things embodied in the foregoing statement of facts are matters and things occurring in the cause, and that the same are hereby made a part of the record therein; and that said statement contains all the material facts, matters and proceedings heretofore occurring in the cause and not already a part of the record therein. ’ ’
That the said paper, purporting to be a statement of facts, purported to contain all the testimony of the witnesses given upon the trial of said cause; but petitioner alleges that a lai’ge part of the material testimony given by said witnesses on said trial was left out of said alleged statement of facts, and that only that part of the testimony of said witnesses as was favorable to said B. Martin and wife was set out in said statement, and that a large part of the testimony which was favorable to petitioner, and tended to prove the allegations of his complaint, was left out of said alleged statement, and that said alleged statement did not and does not contain all of the material facts and proceedings occurring in said cause. That afterwards, in the month of October, 1893, petitioner duly applied to the” said Jesse Arthur, judge as aforesaid, to correct his certificate to said statement of facts according to the facts, and to state and certify in his amended certificate that noné of
In order to expedite a discussion of this case the judge answered admitting the substantial truthfulness of the matters and things set up in the petition, stating affirmatively that, even if he had made an examination of said statement and read the same, he would have been unable to certify that it contains all the material facts testified to on the trial of said cause, as the said testimony was not reduced to writing at the time of said trial; and he did not remember, at the time he made said certificate, all the evidence or all the facts brought out in the trial of said case.
It seems to me that there can be but one construction given to this statute; that the intention of the legislature is plainly deduced from the language employed, viz., that a time and place have been denominated for amendments to be presented by respondent to the statement of facts (a copy of which has been served upon him), if he desires to make any amendments; and if he does not appear at such time and place and offer any objections or amendments, the judge must conclude that he accepts the statement filed as the proper statement, and that no amendments are desired; for the law says plainly that, under such circumstances, ‘ ‘ the proposed bill or statement shall be deemed agreed to, and shall be certified by the judge;” and under such circumstances, in my opinion, the judge has no other duty to perform; no duty of investigation is imposed upon him excepting where amendments are offered, and there is a contest instituted thereby. If respondents were allowed to disregard the time which is prescribed under the law for filing objections to the statement or amendments thereto, then all the provisions of the law as to time are utterly without force or meaning. The idea that the judge is only to enter into an investigation when the statement
“The judge shall certify that the matters and proceedings embodied in the bill or statement, as the case may be, are matters and proceedings occurring in the' cause, and that the same are thereby made a part of the.record therein; and, when such is the fact, he shall further certify that the same contains all the material facts, matters and proceedings heretofore occurring in the cause and not already a part of the record therein, or (as the case may be) such thereof as the gyarties have agreed- to be all that are material therein.”
Under the provisions of this section, if the parties agree that the statement contains the material facts the judge shall so certify. This provision, taken in connection with the provision in § 9, that where there is no amendment the proposed statement shall be deemed agreed to, leaves very little to be said so far as the intention of the lawmakers is concerned. In this case there was, under the law, an agreement that the statement certified contained all the material facts, and the parties are bound by it. While the statute provides that the judge may correct or supplement his certificates according to the facts at any time before an appeal is heard; and that he may be compelled to do so by mandate of this court, he can only correct it in accordance with the facts as shown by the statement at the time of the settlement; but he certainly is not given authority to correct the statement and then make his certificate conform to the facts of the new statement, for this would be virtually a new settlement of the statement of facts, which, as we have said above, would destroy the force of the law prescribing the time; and the questions which ought to have been settled within ten days after the filing of the statement would remain unsettled up to the time of the hearing of the appeal, and no intelligent preparation for the hearing of a case in this court could be made.
The question of notice presentid at considerable length in the petition, it seems to me, cannot be considered here. If legal notice was not given to the respondent, his remedy is to strike the statement of facts, but he cannot rely on his want of notice until after the time for amendment has expired, and then abandon his position, and seek to substitute another statement, or another certificate, which would destroy the force and effect of the statement settled, and which could not be brought here with a certificate of any other character.
The writ should not issue.
Scott and Anders, JJ., concur.
Concurrence Opinion
(concurring). I concur in the foregoing, and in addition would say, that I desire it to appear distinctly,
Concurrence Opinion
I concur in what is said by Judge Stiles as to the right of the court to correct its certificate, and think the writ should issue requiring him so to do.