Hannon v. Millichamp

• Decision Date: 13 September 1905
• Citation: 40 Wash. 118,82 P. 168
• Parties: HANNON v. MILLICHAMP.
• Court: Washington Supreme Court

82 P. 168

40 Wash. 118

HANNON v. MILLICHAMP.

Supreme Court of Washington

September 13, 1905

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by J. H. Hannon against F. Stanley Millichamp. From an order appointing a temporary receiver, defendant appeals. Affirmed.

O. C Moore and B. O. Graham, for appellant.

Fred C Pugh (Barnhart, Laughon & Pugh, of counsel), for respondent.

DUNBAR J.

This appeal is from an order appointing a temporary receiver. The respondent moves to dismiss the appeal, and for an order affirming the judgment of the trial court, because it appears from the record that the order appealed from was made after a hearing upon the merits of the application, at which time the court considered the complaint and various affidavits of the respective parties, and because the affidavits referred to in the order are not in the record by a bill of exceptions or statement of facts. The recital of the judgment in this particular is as follows: 'This cause having been duly continued from September 26th to September 29, 1904, at 9:30 o'clock, a. m. and from September 30th at 1:30 o'clock, came regularly on for hearing on said date on plaintiff's application for a receiver pending the litigation; and after hearing the complaint motion, and various affidavits of the respective parties and the argument of counsel, and it appearing to the court that a partnership exists between plaintiff and defendant, and that an emergency exists for the appointment of a receiver for the property of said partnership described in the complaint, in order to prevent said property from being lost, removed, or materially injured, and to secure ample justice to the parties, it is ordered,' etc. It was decided by this court in Anderson v. McGregor, 36 Wash. 124, 78 P 776, that, where a judgment is based on the pleadings and evidence submitted in the form of affidavits filed, the failure to make the affidavits part of the record by bill of exceptions or statement of facts is fatal to a review of the judgment on appeal. In that case it was said: 'It is also insisted that the appeal should be dismissed for the reason that the entire judgment appealed from is based, as appears from the judgment itself, upon the pleadings and evidence submitted in the form of affidavits filed. The record shows this to be the case. These affidavits are not made a part of the record in this case, either by bill of exceptions or statement of facts, and, while this objection might more appropriately be raised on the merits of the case than on a motion to dismiss, it is in any event fatal to the appellant's right to have the judgment of the lower court reversed in this court.' In Johnson v. Spokane, 29 Wash. 730, 70 P. 122, it was held that, where a judgment of nonsuit recites that it is based on pleadings and the opening statement of counsel for plaintiff, the appeal will be dismissed, where the...