Main Inv. Co. v. Olsen

• Decision Date: 24 August 1906
• Citation: 86 P. 657,43 Wash. 480
• Parties: MAIN INV. CO. v. OLSEN et al.
• Court: Washington Supreme Court

86 P. 657

43 Wash. 480

MAIN INV. CO. v. OLSEN et al.

Supreme Court of Washington

August 24, 1906

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

Action by the Main Investment Company against Olaus Olsen, and another. From a judgment for plaintiff, defendant Olsen appeals. On motion to dismiss. Granted conditionally.

L. H Prather, for appellant.

Gallagher & Thayer, for respondent.

ROOT J.

Respondent moves to dismiss the appeal herein upon two grounds: First that appellant did not file his notice of appeal together with proof of service thereof within five days after service second, that appellant did not file an appeal bond within five days after giving notice of appeal. The transcript shows that appellant's notice of appeal was served on November 18, 1905, but that the notice and appeal bond were not filed until nine days thereafter, to wit, on November 27th. The first ground assigned is insufficient to justify a dismissal of the appeal. Reynolds v. Reynolds (Wash.) 84 P. 579.

The second presents a more serious question. Section 6505 of Ballinger's Ann. Codes & St. says: 'An appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond * * * be filed with the clerk of the superior court.' Under this section of the statute and numerous decisions of this court, this appeal must be dismissed if, as a matter of fact, the bond was not filed within five days after the notice of appeal was served. Appellant has filed in this court affidavits whereby it is made to appear that the bond was filed, or delivered to the clerk of the superior court for filing, on the same day that the notice of appeal was served, and that appellant had no knowledge or intimation that the same was not filed upon said day until he received respondent's brief containing the motion to dismiss. Respondent moves this court to strike these affidavits, for the reason that this court cannot pass upon an issue of fact of this character raised in this manner, but that it must accept the record as certified and sent to it by the superior court. Under numerous rulings of this court, the record cannot be challenged by affidavits in this manner. However by reason of the facts suggested by these affidavits, we believe it is in the interest of justice to permit this appellant to...