McQuesten v. Morrill

• Decision Date: 17 July 1895
• Citation: 12 Wash. 335,41 P. 56
• Parties: MCQUESTEN v. MORRILL ET AL.
• Court: Washington Supreme Court

41 P. 56

12 Wash. 335

MCQUESTEN v. MORRILL ET AL.

Supreme Court of Washington

July 17, 1895

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by W. F. McQuesten against George Morrill and others to foreclose logging liens and two chattel mortgages. Judgment was rendered for plaintiff, and defendant Morrill appeals. Judgment modified.

James Kiefer, for appellant.

Coleman & Hart and Bell & Austin, for respondent.

SCOTT J.

Preceding the argument upon the merits, a motion was made to strike the statement of facts on the ground that the law had not been complied with as to the time of its filing. The decree was rendered on the 31st of May, 1894. Appellant served notice on respondent that he would apply on June 27th for an extension of time within which to file and serve the statement of facts, but the matter was not heard at this time, on account of the absence of the judge before whom the case was tried. Thereafter, on July 30th, upon the application of appellant, the court made an order extending the time for the filing and service of the statement of facts to the 15th day of August. No notice of this application had been served upon respondent, and he was not present at the hearing. The statute (section 13, p. 116, Laws 1893) provides that the statement must be filed within 30 days after the time begins to run within which an appeal may be taken, and it contains the following provision: "Provided, that the time herein prescribed may be enlarged either before or after its expiration, once or more, but not for more than sixty days additional in all, by stipulation of the parties, or for good cause shown and on such terms as may be just, by an order of the court or judge wherein or before whom the cause is pending or was tried, made on notice to the adverse party. And 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 other steps and proceedings leading up to the making of the certificate, shall be deemed steps and proceedings in the cause itself, resting upon the jurisdiction originally acquired by the court in the cause and no irregularity or failure to pursue the steps prescribed by this act on the part of any party, or the judge, shall affect the jurisdiction of the judge to settle or certify a proper bill of exceptions or statement of facts." It is first contended by appellant that his time within which to serve and file the statement had not commenced to run, in consequence of the failure upon the part of respondent to serve notice upon him of the entering of the judgment; but we do not think that this objection is tenable because appellant took notice of the rendition and entering of the judgment when he sought to appeal therefrom, and instituted proceedings to that end. Appellant further contends that the specific requirements of the first part of the section, relating to the time within which the statement must be filed, and to the time and manner of its extension upon notice to the adverse party, etc., must be held to be directory only, in view of the remainder of the section. The language of the section in these particulars is contradictory. The first requirements, with reference to the manner of the extension of the time, and service of notice upon the respondent of the application therefor, are specific and certain, and no stronger language could well be employed were it the intention of the legislature to make these provisions mandatory. The remainder of the section, however expressly provides that no failure to pursue any of the steps pointed out with reference to the filing, service, and settlement of the statement of facts shall prevent the court from settling and certifying a proper statement; and the question to be determined is, what was the real intention of the legislature in enacting this law? It seems to us that it lies between the two provisions, or, in other words, that the appellant must serve upon the respondent notice of the application for an extension of time for filing and serving a statement of facts, unless he can show good and valid reasons for not having done so; but if, upon the other hand, the appellant should be prevented, through no fault of his own from serving such notice, and had diligently and in good faith sought to prosecute his appeal, and to comply with the requirements of the law, he should not be deprived of the benefit of a fair and proper statement of the facts, in consequence of a want of authority on the part of the judge to settle the same within the time specified for which an extension could have been granted upon notice to the adverse party, because the appellant was prevented, by some circumstance over which he had no control, from giving such notice. It is certainly in accord with the best system of practice that important steps in a litigated cause should not be taken ex parte, and a statement of the material facts upon which a cause was tried, to be used upon an appeal, is a most important matter. Incidentally, it may be well to notice, in this connection, that the legislature, in enacting this section, seems to have provided that there cannot be an extension of this time for more than 60 days, either by a stipulation of the parties or by an order of the court. This provision might not preclude an extension of the time beyond such period of 60 days upon the joint action or consent of the parties and the court, but it seems to vest the right in both the adverse party and the court to prevent an extension beyond said period. It is desirable that the facts should be settled as speedily as possible, while they are fresh in the minds of the judge and the parties, and this is...