Bringgold v. Bringgold

• Decision Date: 13 September 1905
• Citation: 40 Wash. 121,82 P. 179
• Parties: BRINGGOLD v. BRINGGOLD.
• Court: Washington Supreme Court

82 P. 179

40 Wash. 121

BRINGGOLD v. BRINGGOLD.

Supreme Court of Washington

September 13, 1905

Appeal from Superior Court, Spokane County; A. G. Kellam, Judge pro tem.

Action by Carrie L. Bringgold against Otto Bringgold. Judgment for plaintiff, and defendant appeals. Affirmed.

Peacock & Wells, for appellant.

A. H Kenyon, for respondent.

HADLEY J.

This is an action for divorce, in which the wife is plaintiff. A decree of divorce was entered in her favor, and a disposition of property was made. Defendant has appealed.

Respondent has moved to strike the statement of facts upon the ground that it is not indexed in accordance with rule 3 of this court. The statement contains 1,361 pages of typewritten matter. A number of witnesses were examined, and some were frequently recalled; but there is no index showing who testified, or upon what ones of the numerous pages the testimony of any single witness may be found. For such an omission to comply with a well-known rule in a case containing such a large amount of testimony, we believe the court would be justified in imposing terms, or in even refusing to consider the statement altogether. But, in view of the record and of the disposition that must be made of the case, we shall pass over that ground of the motion. The condition of the record is such that it relieves us of a laborious search through the entire mass of testimony, and for that reason alone we pass over this subject.

Respondent also moves to strike the statement of facts for the reason that no exceptions were taken to the findings of facts or conclusions of law. We find no written exceptions in the record, except the following memorandum, which appears at the close of appellant's proposed findings of facts and conclusions of law: 'The above findings of fact, except so far as they are duplicated in findings signed, refused. Conclusions of law refused. Defendant excepts and exception allowed. Dated June 29, 1904. A. G. Kellam Judge Pro Tem.'

Under repeated decisions of this court, the above is not sufficient; it being merely general and specifying no particular finding that was either made or refused concerning which exception is taken. Appellant's counsel refer to a certain colloquy between court and counsel, which is set forth in the statement of facts, from which they urge that it appears that they were excepting to the court's findings and to its refusal to find as proposed. The conversation was merely of a general character concerning what the court should find. Such a record is wholly insufficient as furnishing the definite exceptions required. There were no exceptions filed in writing at any time, and no definite ones appear by the record to have been stated to the trial court at the time the findings were signed, so as to be clearly understood by that court or by this one, as required by section 5052, 2 Ballinger's Ann. Codes & St. Under such circumstances, this court has in some instances stricken the statement of facts. In the recent case of Lilly v. Eklund (Wash.) 79 P. 1107, it was, however, held that, for failure to...