108 Wash. 170 | Wash. | 1919
This is an appeal from a judgment in an action for unlawful detainer, founded on the verdict of a jury finding in favor of the plaintiff and assessing her damages in the sum of $300. The judgment was for twice the amount found to be due by the jury.
The facts upon which the motion is based are, in substance, these: Judgment in the cause was entered on November 20, 1918.. The notice of appeal was served and the bond on appeal was filed December 7, 1918. On January 17,1919, the appellants applied for and obtained an extension of time in which to file and serve a statement of facts, the time being extended to January ,28, 1919. The statement of facts was filed on January 27, 1919. No service of the statement was made upon the respondent, nor was she served with notice of the filing thereof. On March 25, 1919, and without notice to the respondent, the statement was certified by the trial judge. On the next day, a copy of the statement was left at the office of the respondent’s attorney, and two days later the original statement was filed in this court.
On March 28, 1919, the respondent moved in this court to strike the statement of facts and dismiss the appeal. On the application of the appellants to supplement the record, the motion was denied with leave to respondent to renew it at the hearing on the merits. After the denial of the motion, the appellants served upon the respondent a notice to the effect that they would apply to the trial court on a day named for a “re-certification and re-settlement” of the statement
As the statute relating to the filing and service of proposed statements of fact (Rem. Code, §§ 389, 393) stood prior to the amendatory statute of 1915 (Id., § 1730-8) unquestionably the motion is well taken. That statute required that the proposed statement must be filed with the clerk and served on the adverse party within thirty days after the time begins to run in which an appeal may be taken, with the proviso that the time of filing and service might be extended before or after its expiration by the trial court on stipulation of the parties, or for good cause shown, but not for more than sixty days additional in all. Here, as will appear from the dates before given, the statement was filed within the additional period allowed by the statute, but was not served on the respondent, who in this instance is the adverse party, until long after the expiration of such period. This, as we have repeatedly held, is fatal to its consideration.
The remaining question is whether the omission has been cured in virtue of the amendatory statute by the subsequent proceedings. That statute reads as follows:
“Sec. 1730-8.—In case of a failure of the appellant to serve an abstract of record and statement of facts, or the one" served is insufficient, the supreme court shall, if such failure is found to be excusable, allow the appellant a reasonable time, upon such terms as the court may impose, in which to supply such abstract of record and statement of facts.”
The errors assigned with one exception are based upon matters shown in the statement of facts. Since we conclude thát the statement is not before us, these, of course, cannot be considered. The exception noted is the contention that the court erred in entering judgment for twice the amount of the damages returned by the jury. It is argued that the statute (Rem. Code, § 827) permits such doubling only in cases where the verdict of the jury is founded on nonpayment of rent. But the question does not require discussion. It was met and determined by this court contrary to this contention in the case of Hinckley v. Casey, 45 Wash. 430, 88 Pac. 753.
The judgment is affirmed.
Holcomb, C. J., Parker, and Mount, JJ., concur.