Erickson v. Erickson

• Decision Date: 07 February 1895
• Citation: 39 P. 241,11 Wash. 76
• Parties: ERICKSON v. ERICKSON.
• Court: Washington Supreme Court

39 P. 241

11 Wash. 76

ERICKSON v. ERICKSON.

Supreme Court of Washington

February 7, 1895

Appeal from superior court, Pierce county; Emmett N. Parker, Judge.

Action by Jacob Erickson against Z. Erickson to recover for labor performed for defendant. There was a verdict for plaintiff and from a judgment thereupon entered for plaintiff, a new trial being denied, defendant appeals. Appeal dismissed.

J. H Cannon, for appellant.

John P Judson, for respondent.

ANDERS J.

The respondent moves the court to strike the statement of facts from the record, for the reason that the same was not filed, served, settled, or certified as by law provided. It appears that the judgment in this cause was entered on November 27, 1893, and that the statement of facts was not filed within 30 days thereafter. But on January 22 1894, the appellant applied to the court for an extension of time in which to file his proposed statement of facts. The time was extended, by order of the court, to January 29 1894, and the proposed statement of facts was filed January 25, 1894. The statute provides that a party desiring to have a statement of facts certified must prepare the same as proposed by him, file it in the cause, and serve a copy thereof on the adverse party. No copy of the statement was served on the respondent after it was filed, but the appellant insists that the law respecting service was complied with by leaving a copy of the stenographer's notes of the evidence with the respondent's attorney on the day he applied for further time in which to file his proposed statement of facts. But it is difficult to understand why he should have desired additional time in which to file his statement of facts if the stenographer's notes, which he then had, constituted the statement he proposed to file. In contemplation of law, there can be no statement of facts in a cause until it has been properly filed therein; and no valid service of a statement can be made by copy until the original has been filed. In other words, service cannot precede the filing of the statement. Hastings v. Halleck, 10 Cal. 31; Buffendeau v. Edmondson, 24 Cal. 94; Moulton v. Ellmaker, 30 Cal. 528; Lambert v. Moore, 1 Nev. 293. We think, therefore, that the statement of facts was not served as provided by law. On March 13, 1894, notice was given respondent that appellant would apply to the judge who tried the cause to settle and certify the statement of facts on March 22, 1894, and the statement was certified on that day, respondent not being present. Under the statute, the respondent is entitled to 10 days...