Richardson v. Spangle

• Decision Date: 02 January 1900
• Citation: 60 P. 64,22 Wash. 14
• Court: Washington Supreme Court
• Parties: RICHARDSON v. SPANGLE.

60 P. 64

22 Wash. 14

RICHARDSON v. SPANGLE.

Supreme Court of Washington

January 2, 1900

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Gilbert Richardson against W. H. Spangle. From a judgment for defendant, plaintiff appeals. Reversed.

James Hopkins and Norman Buck, for appellant.

James Dawson and Hyde, Latimer & Barnes, for respondent.

GORDON C.J.

This was an action to recover damages for malicious prosecution. At the close of plaintiff's evidence the lower court upon defendant's motion, discharged the jury, and directed judgment for the defendant. The plaintiff has appealed. The judgment was entered on the 23d of January 1899. On June 24, 1899, respondent served and filed a motion to dismiss the appeal because the record had not been transmitted to this court within four months, as required by law. It appears that appellant duly filed and served a proposed statement of facts, which was retained by the trial court for a period of about 60 days, and then signed and settled as the statement of facts in the cause. The trial court also extended the time for serving and filing the appellant's brief for a period of 90 days, which period did not expire until the 8th of August, 1899. Prior to the expiration of this last-mentioned date, the briefs were served, and the record sent up. By affidavit it is made to appear that rule 13, subd. 'd,' of the superior court rules requires the clerk of that court in all cases appealed to the supreme court to retain, and 'not forward the statement of facts therein to the clerk of the supreme court until the time for filing the respondent's brief has elapsed, except by consent in writing of respondent's counsel.' We think the showing made by appellant is sufficient, and that the motion to dismiss must be denied.

Proceeding to a consideration of the merits:

1. At the trial one E. M. Woydt, a justice of the peace of Spokane county, was called and examined as a witness upon the part of the plaintiff. Upon his direct examination he was only called upon to identify certain papers and docket entries in a criminal proceeding instituted in his court upon the sworn complaint of the defendant in this action, which complaint charged the plaintiff herein with the crime of grand larceny. Upon cross-examination, over the objection of the plaintiff the superior court permitted the justice to testify that the complaining witness therein (res...