F. Chevalier & Co. v. Wilson

• Decision Date: 18 October 1902
• Court: Washington Supreme Court
• Parties: F. CHEVALIER & CO. v. WILSON.

70 P. 487

30 Wash. 227

F. CHEVALIER & CO. v. WILSON.

Supreme Court of Washington

October 18, 1902

Appeal from superior court, Mason county; Mason Irwin, Judge.

Action by F. Chevalier & Co. against J. H. Wilson. From an order denying a motion to vacate a judgment for plaintiff defendant appeals. Affirmed.

W. I Agnew and J. W. Robinson, for appellant.

H. S Tremper, for respondent.

DUNBAR J.

This appeal is from an order of the superior court of Mason county overruling a motion to vacate a judgment, set aside a sale which had been made thereunder, and dismiss the action. The respondent interposes a motion to strike from the records and transcript certain affidavits and certified copies of articles of incorporation appearing therein, and moves for an order affirming the order and judgment of the court appealed from, for the reason that the assignments of error sought to be reviewed by the appeal herein and discussed in appellant's brief are based solely and wholly on evidence submitted to the lower court by affidavits and papers at the time of the hearing of the motion upon which such order was based, and that such alleged evidence is not properly before this court for consideration for the reason that said order was based wholly upon evidence, and that said evidence was never settled by the trial court by bill of exceptions or statement of facts, has never been authenticated in any manner by the lower court, and does not in law, constitute any part of the transcript or record herein. This motion must be sustained. The record does not contain any certification or settlement of a statement of facts or bill of exceptions. The only certificate furnished by the judge is as follows: 'This cause coming on regularly for hearing upon defendant's motion for an order setting aside and annulling the execution levy and sale in this cause, setting aside and vacating the judgment, and dismissing the action, and the court having heard the argument of counsel, and having examined the affidavits and briefs furnished by the respective parties, and having duly considered the same, the court finds that said H. S. Tremper was duly authorized to appear for the plaintiff in said action, and it is considered and ordered that the said motion be, and the same is hereby, overruled. Mason Irwin, Judge.' It is not ascertainable from this certificate that the affidavits and evidence appearing in the transcript are the affidavits and evidence upon which the judge acted, and, conceding that they were, it does not appear that they were all the affidavits and evidence upon which the conclusion reached by the judge was based. We held in Windt v. Banniza, 2 Wash. St. 147, 26 P. 189, that affidavits used upon the hearing of the motion to discharge an attachment are not part of the record, and, in order to be available on appeal, must be brought up by a statement or bill of exceptions. In Spokane Falls v. Curry, 2 Wash. St. 541, 27 P. 477, which was, as is this case, a motion to set aside a judgment, it was held that the affidavits, not having been made a part of the record by statement or bill of exceptions, could not be considered. In Clay v. Irrigation Co., 14 Wash. 543, 45 P. 141, in speaking of this same question, it was said: 'There is nothing to show that they (the affidavits) were all presented or read to the court below on the hearing of the motion, and, in order to entitle them to consideration here, the fact that they were so presented should have been certified to by the court in some manner, and the motion to strike them is granted.' In State v. Howard, 15 Wash. 425, 46 P. 650, in discussing a motion to strike from the transcript what purported to be copies of motions and affidavits for continuance, it was said: 'Such papers, unless authenticated by the certificate of the trial judge, and brought into the record upon proper bill of exceptions or statement of facts settled upon notice, cannot be considered, because in no other way can it be determined that they formed any part of the proceedings below, or that the attention of the trial court was ever directed to them. It is not enough that such...