Seattle Nat. Bank v. Trefethen, 23503.

• Decision Date: 09 May 1932
• Docket Number: 23503.
• Citation: 11 P.2d 244,168 Wash. 173
• Parties: SEATTLE NAT. BANK v. TREFETHEN et ux.
• Court: Washington Supreme Court

11 P.2d 244

168 Wash. 173

SEATTLE NAT. BANK v. TREFETHEN et ux.

No. 23503.

Supreme Court of Washington

May 9, 1932

Department 2.

Appeal from Superior Court, King County; A. W. Hawkins, Judge.

Action by the Seattle National Bank against Daniel B. Trefethen and wife. From judgment for plaintiff, defendants appeal.

Affirmed.

Trefethen & Porterfield, of Seattle, for appellants.

Bausman Oldham, Cohen & Jarvis, of Seattle, for respondent.

MAIN J.

This action is based upon a promissory note. The cause was tried to the court without a jury, and resulted in findings of fact from which the court concluded that a recovery could be had. Judgment was entered against Daniel B. Trefethen individually, and against the community composed of himself and wife for the balance due upon the note, from which they appeal.

The respondent's brief opens with a motion to strike the statement of facts because not filed within the required time. The judgment from which the appeal was prosecuted was entered April 14, 1931. A motion for new trial, which had been made, was overruled June 16, 1931. The statement of facts was filed October 13, 1931. It thus appears that the statement of facts was filed more than ninety days after the motion for new trial was overruled.

Rule of Practice VII, 159 Wash. lxi, provides that a bill of exceptions or statement of facts must be served and filed either Before or within ninety days after the time begins to run within which an appeal may be taken from the final judgment in the cause. This court, in a long line of cases has held that a statement of facts, not filed within the time fixed by the rule or within the statutory time, prior to the promulgation of the rule, upon motion, will be stricken. The most recent case to this effect is Potlatch Lumber Co. v Ferry County (Wash.) 9 P. (2d) 783, where many of the previous cases are cited, and it is unnecessary to here assemble them again.

The appellants move to strike the respondent's brief because it was not filed within the time required by the rules, and this apparently upon the theory that, if the brief were stricken, there would be no motion Before the court to strike the statement of facts and the court would thereupon consider the case upon its merits. However, if the brief were stricken, it would not accomplish the purpose which the appellants seek. While the opinion does not so recite in the case of Moss v. Moss, 163 Wash. 444, 1 P.2d 916, the fact is that in that case no motion to strike the statement of facts was made; but the question was raised by the court of its own motion.

It is said that the same rule should be applied to an overdue brief as is...