First Nat. Bank v. Andrews

• Decision Date: 16 March 1895
• Citation: First Nat. Bank v. Andrews, 39 P. 672, 11 Wash. 409 (Wash. 1895)
• Parties: FIRST NAT. BANK OF ABERDEEN v. ANDREWS ET AL.
• Court: Washington Supreme Court

39 P. 672

11 Wash. 409

FIRST NAT. BANK OF ABERDEEN v. ANDREWS ET AL.

Supreme Court of Washington

March 16, 1895

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

Action by the First National Bank of Aberdeen against Julius Andrews, George H. Keith, and others, to foreclose a mortgage. There was a judgment for plaintiff, and defendant Andrews appeals. On motion to strike the statement of facts from the files, and to dismiss the appeal, motion granted as to statement of facts, and judgment affirmed.

Hogan &amp McGerry and Ben Sheeks, for appellant.

Wm. O McKinlay, O. V. Linn, and J. B. Bridges, for respondent First National Bank.

Austin E. Griffiths, for respondent Keith.

ANDERS J.

The respondent moves the court to strike the statement of facts from the files herein, and to dismiss the appeal, upon the grounds that no notice of filing the statement of facts was ever served upon defendant Keith, and that no notice, either written or oral, was ever given the defendant Keith of the filing, signing, or settling of the said statement of facts by the appellant, or by any one for him. It appears from the record that the defendant Keith filed an answer in this cause in the court below, and thereby appeared in the action. A proposed statement of facts was prepared by the appellant, and filed and served upon the respondent bank but it is admitted that no notice of the filing thereof was ever served upon the defendant Keith. Section 9, c. 60, Laws 1893, provides that "a party desiring to have a bill of exceptions or 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, and shall also serve written notice of the filing thereof on any other party who has appeared in the cause. Within ten days after such service any other party may file and serve on the proposing party any amendments which he may propose to the bill or statement. Either party may then serve upon the other a written notice that he will apply to the judge of the court before whom the cause is pending or was tried, at a time and place specified *** to settle and certify the bill or statement." Laws 1893, p. 114. It is urged on behalf of the appellant that, inasmuch as the statement of facts in this cause had been properly certified by the trial court, this court has no authority to set it aside or disregard it, for the reason that the same act provides (section 13) that "the certifying of a bill of exceptions or statement of facts provided for by this act, and the filing and service of the proposed bill or statement, the notice of application for the settlement thereof, and all...