Johnson v. Washington Trust Co.

• Citation: 33 Wn.2d 84,204 P.2d 505
• Decision Date: 29 March 1949
• Docket Number: 30902.
• Parties: JOHNSON et al. v. WASHINGTON TRUST CO. et al. (RECONSTRUCTION FINANCE CORPORATION, Intervener).
• Court: United States State Supreme Court of Washington

204 P.2d 505

33 Wn.2d 84

JOHNSON et al. v. WASHINGTON TRUST CO. et al. (RECONSTRUCTION FINANCE CORPORATION, Intervener).

No. 30902.

Supreme Court of Washington

March 29, 1949

Department 1

On Rehearing June 25, 1949.

Action by E. W. Johnson and A. C. Nash, copartners, doing business as Pacific Electronics, against the Washington Trust Company of Spokane, wherein the Reconstruction Finance Corporation intervened, R. T. Carr, trustee. From an adverse judgment the plaintiffs appealed. On motion to strike statement of facts.

Motion granted.

STEINERT J., dissenting.

Congdon Clemans & Kasperson, of Seattle, for appellants.

Paine, Lowe & Coffin, of Spokane, for Washington Trust Co.

Stimson & Donahue, of Spokane, for Reconstruction Finance Corp.

Frank P. Weaver and Weaver & Jones, of Spokane, for R. T. Carr.

HILL Justice.

We are here concerned with a motion to stricke the statement of facts. The judgment appealed from was entered September 28, 1948. On December 9, 1948, the appellants filed a proposed statement of facts consisting of four numbered volumes of the reporter's record totaling more than twenty-five hundred pages, together with a separate volume denominated 'Statement of Facts for June 1, 9, 28 and 29, 1948,' which contains only seventy-one pages. It is stated by the respondents in their brief, and not denied by the appellants, that the following appears as the final item of the reporter's record in the volume last referred to:

"The Court: Let the journal show that this matter is continued until 9:30 o'clock a. m. on the 9th, and then if counsel have any agreed order between them, subsequent to that time, we can consider it.

"Adjourn court.

"(Whereupon, at 4:22 o'clock p. m., the matter was continued to September 9, 1948, at 9:30 o'clock a. m.)"

It is obvious that the trial had not been completed on June 29th and that further proceedings were contemplated; and it is agreed that additional testimony was taken on September 27, 1948, and that the findings of fact, conclusions of law, and judgment were signed on September 28th.

An additional volume, marked 'Statement of Facts for September 27 and 28, 1948,' was filed January 17, 1949. That date was beyond the time limit prescribed by Rule of Supreme Court 9(1), 18 Wash.2d 9-a, which requires that a proposed statement of facts be filed in the office of the clerk of the superior court within ninety days after entry of the final judgment.

These six volumes together comprise the statement of facts as finally certified by the trial court.

The question we must determine is whether the five volumes filed on December 9, 1948, constituted a proposed statement of facts, or whether the filing of the sixth volume was necessary Before there was a proposed statement of facts within the purview of Rule 9(1).

We have repeatedly said that the filing of the proposed statement of facts within the ninety-day period is mandatory, and that the question of failure so to do may be raised at any time or by the court on its own motion. See Neis v. Pool, 148 Wash. 646, 269 P. 801, decided August 27, 1928, the first case decided after the ninety-day rule was adopted on January 14, 1927, replacing the statutory requirement of thirty days with sixty days' permissive extension. Rem.Rev.Stat. § 393. Previously, the statute had also been held to be mandatory. Loos v. Rondema, 10 Wash. 164, 38 P. 1012, and many cases thereafter. We feel safe in saying that, between Neis v. Pool, supra, and Woodard v. Kuhn, Wash., 200 P.2d 739, decided December 10, 1948, the rule has been invoked during every intervening term of this court, and one or more decisions thereon may be found in every volume of our reports.

In order to satisfy the rule, a proposed statement of facts must be filed in good faith and with an intent that such statement be a full and complete record of the facts, matters, and proceedings theretofore occurring in the cause. Livermore v. Northwest Airlines, Inc., 6 Wash.2d 1, 106 P.2d 578; Colasurdo v. Colasurdo, 27 Wash.2d 860, 181 P.2d 172. We have held that, if the proposed statement of facts is so filed, even though deficient, it may be corrected. Livermore v. Northwest Airlines, Inc., supra. On the other hand, we have held that, when a record obviously is not complete, it does not meet the requirements of the rule. Tremblay v. Nichols, 187 Wash. 109, 59 P.2d 1123; Grant v. Fisher Flouring Mills Co., 190 Wash. 356, 68 P.2d 210; Schultz v. Anderson, 191 Wash. 326, 71 P.2d 365; Colasurdo v. Colasurdo, supra.

From comments made by the trial court as set forth in the affidavits filed in support of the motion to strike the statement of facts, it seems that in this case the reporter inadvertently omitted the proceedings of September 27 and 28, 1948, from the record of the proceedings which he prepared, and that the attorneys for the appellants filed what the reporter delivered to them without examination and in the belief that it constituted a full and complete statement of facts. The appellants therefore insist that the five volumes of the reporter's record filed on December 9, 1948, were filed in good faith and were intended to be a full and complete statement of facts, and that, consequently, they have met the requirements of the rule. The trial court indicated its belief that appellants' counsel had acted in good faith.

The respondents insist that it cannot be said that the proposed statement of facts was filed in good faith and was intended to be full and complete when the testimony taken on September 27th and the proceedings on September 28th were not included and did not purport to be included, and the statement of facts was obviously incomplete.

We agree with the respondents. We do not belive that an appellant can file whatever the court reporter hands him as a proposed statement of facts and then say he filed it in good faith and intended it to be full and complete if, in fact, even a cursory examination would show that it was incomplete. The party proposing a statement of facts must take the responsibility for at least the clearly apparent omissions of the court reporter. In State ex rel. Royal v. Linn, 35 Wash. 116, 76 P. 513, we said that 'he must be presumed, in law, to know what the proposed statement contains'.

Any examination of the five volumes of the reporter's record filed on December 9, 1948, as a proposed statement of facts would have shown that the fifth volume, by its caption, covered only four days of the trial, the last of which was June 29, 1948. The appellants must have known that there were proceedings subsequent to June 29th, even if they did not look inside the volumes presented to them and see that the last page of the reporter's record showed a continuance to a day certain.

Our cases indicate that a proposed statement of facts which has been filed in good faith and with the intent that it be full and complete, may be corrected and amended after the expiration of the ninety-day period allowed for the filing of the proposed statement of facts. It may even be added to or supplemented, if the addition or supplement is an amendment and not a complement. Livermore v. Northwest Airlines, Inc., supra.

Four cases have been cited and more could be furnished if necessary to establish that we are committed to the rule that, where something must be added to complete a proposed statement of facts timely filed but incomplete, the addition will not be permitted after the ninety-day period. In Colasurdo v. Colasurdo, supra, 27 Wash.2d at page 871, 181 P.2d at page 177, it was said:

'In the instant case the so-called supplemental statement was not a supplemental statement at all, but was a statement of the matters and proceedings occurring at the trial, which the court reporter had not transcribed in time to file it within the ninety days; in other words, it purported to complete a record which was admittedly incomplete and not in conformance with the statutory requirements.'

Whether the incompleteness of the record is due to the failure of the court reporter to transcribe his notes, as in the Colasurdo case, or his failure to include the final two days' proceedings in the statement of facts prepared by him, as in the present case, would seem to be immaterial. In either case, the proposed statement of facts is incomplete.

The appellants contend that there is a distinction between a case where the appellant voluntarily seeks to complete an incomplete proposed statement of facts after the expiration of the ninety days and a case where the appellant files a complementary supplement or supplements under the direction of the court. Appellants cite as illustrations of the former class of cases, State v. Schafer, 154 Wash. 322, 282 P. 55; State v. Sherwood, 166 Wash. 160, 6 P.2d 595; Grant v. Fisher Flouring Mills Co., supra; Falk v. Rose, 18 Wash.2d 333, 139 P.2d 634; and, as illustrations of the second class of cases, State ex rel. Larpenteur v. Superior Court, 183 Wash. 252, 48 P.2d 205; Livermore v. Northwest Airlines, Inc., supra; Thompson v. Short, 6 Wash.2d 71, 106 P.2d 720.

This court does not recognize such a distinction as that for which appellants contend, and there is no logical basis for it. If the proposed statement of facts, when filed, was obviously incomplete and remained so at the expiration of the ninety-day period, then, whether the supplementation which completed the proposed statement of facts was filed voluntarily by the appellants or was made in conformity with an order by the trial court is immaterial, because no proposed statement of facts within the contemplation of the rule was filed within the ninety-day period. In Colasurdo v. Colasurdo, supra, 27 Wash.2d at page 870, 181 P.2d at page 176, we said:

'It seems to...