State v. Parker

• Decision Date: 26 October 1894
• Parties: STATE EX REL. SMITH ET AL. v. PARKER, JUDGE.
• Court: Washington Supreme Court

38 P. 156

9 Wash. 653

STATE EX REL. SMITH ET AL. v. PARKER, JUDGE.

Supreme Court of Washington

October 26, 1894

Petition by George W. Smith and others for a writ of mandamus to issue against Emmett N. Parker, judge of the superior court of Pierce county, to compel him to certify to a statement of facts on appeal prepared by them in a certain cause pending before him. Writ denied.

Walter M. Harvey, for respondent.

STILES J.

The relators show by their petition that in a certain cause pending in the superior court of Pierce county, before the respondent as judge, they prepared, filed, and served a statement of facts on appeal, to which the opposing party in the action offered amendments, which were accepted. These facts, they contend, justified their demand that the respondent certify the statement, with the amendments incorporated, as "such facts, matters, and proceedings heretofore occurring in the cause, and not already a part of the record therein, as the parties have, by such proposed statement of facts and accepted amendments thereto, agreed to be all the facts, matters, and proceedings material therein." Upon this showing a mandamus is asked to require the making of the certificate demanded. The respondent's answer, after admitting the material facts of the petitioners' statement of the matter, alleges that, while the statement of facts submitted to him contained a part of the evidence preserved by a stenographer, it did not contain all of the evidence,-that pertaining to some of the material issues being entirely omitted. The answer further shows that the form of certificate demanded of him was as follows: "That the matters and proceedings embodied in said statement of facts are matters and proceedings occurring in the cause, and contains what the parties have, by the proposed statement of facts and proposed amendments thereto, agreed and accepted to be all the material facts, matters, and proceedings heretofore occurring in the cause, and not already a part of the record thereof." This certificate the respondent refused to make, because it would be untrue, but he offered to certify that the matters and proceedings embodied in the statement were "facts matters, and proceedings occurring in the cause," etc.

Section 11 of chapter 60 of the Acts of 1893 is appealed to by the relators as sustaining their contention that when a statement has been proposed, and amendments are made and accepted, the engrossed statement and amendments are to be taken as an agreed statement of all the material facts, and must be so certified by the judge. But the error of this construction is apparent from the present case. The statute does not contemplate that a trial judge shall be called upon to certify to this court as true what he knows to be not true. The relators evidently expect to have their appeal upon some error alleged to have occurred in...