Hale v. City Cab, Carriage & Transfer Co.

• Decision Date: 04 January 1912
• Court: Washington Supreme Court
• Parties: HALE et al. v. CITY CAB, CARRIAGE & TRANSFER CO.

119 P. 837

66 Wash. 459

HALE et al. v. CITY CAB, CARRIAGE & TRANSFER CO.

Supreme Court of Washington

January 4, 1912

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by W. D. Hale and others, copartners, doing business under the style of the Hale-Tindall Company, against the City Cab Carriage & Transfer Company. Judgment for defendant, and from an order granting plaintiffs' motion for a new trial defendant appeals. Affirmed.

John M. Gleeson and Joseph F. Morton, for appellant.

ELLIS J.

Appeal from an order granting a new trial. The jury returned a verdict in favor of defendant, appellant here, and on motion of plaintiffs, respondents here, a new trial was granted. The motion assigned all of the statutory grounds excepting the sixth (1 Rem. & Bal. Code, § 399), and stated that it was based upon 'the records and files herein and upon the affidavits hereinafter to be filed herein.' No affidavits were attached to or made a part of the motion as appears from the transcript. The order for new trial was entered January 21, 1911. It is couched in general terms. The appellant contends that the order was granted solely on the grounds of surprise and newly discovered evidence. There is nothing in the order to substantiate this claim. It states no grounds.

Appellant quotes at length from an affidavit purporting to show surprise and new evidence which it is claimed was made in support of the motion. No such affidavit, however, appears anywhere in the record. Reference is also made to other affidavits which it is claimed were used on the hearing of the motion for new trial. They are not embodied in the statement of facts, and there is no certificate of the trial judge that they were so used. None of these affidavits nor any affidavits are embodied in, attached to, or in any manner made a part of, the statement of facts nor covered by the judge's certificate thereto. For this reason, under repeated decisions of this court, we cannot consider them. Taylor v. Modern Woodmen of America, 42 Wash. 304, 84 P. 867; Rice Fisheries Co. v. Pacific Realty Co., 35 Wash. 535-538, 77 P. 839; State v Yandell, 34 Wash. 409, 75 P. 988; Griggs v. MacLean, 33 Wash. 244, 74 P. 360; Chevalier v. Wilson, 30 Wash. 227, 70 P. 487; Shuey v. Holmes, 27 Wash. 489, 67 P. 1096. The notice of filing of the proposed statement of facts seems to indicate that counsel for appellant held the mistaken view that it was only necessary to have these affidavits included in the files in the same manner as exhibits. The notice states that the clerk will be requested to attach to the statement the exhibits, 'and, in addition thereto, defendant's motion for a new trial, together with affidavits now on file in said court and cause which were used on the hearing of said motion for a new trial, together with the order overruling the same.' This would not be sufficient. Affidavits used on a motion for new trial must be made a part of the statement and identified by the judge's certificate as those so used on the hearing before we can consider them.

Counsel also raises, somewhat vaguely, a contention that the court should have refused to grant a new trial because the complaint and evidence show that the plaintiffs were partners doing business under an assumed name, designation, or style, and have failed to file in the office of the county clerk a certificate setting forth the designation or style of the firm and the true names of all of the partners, as required by chapter 145, p. 288, Laws 1907 (2 Rem. & Bal. Code, § 8369 et seq). This objection was not taken by demurrer or answer.

The point was barely suggested by an objection to evidence as to who was the managing partner, which on reference to the statute the court overruled on...