State v. Superior Court of Whatcom County

• Decision Date: 07 August 1913
• Citation: 134 P. 183,74 Wash. 601
• Court: Washington Supreme Court
• Parties: STATE ex rel. SEFRIT v. SUPERIOR COURT OF WHATCOM COUNTY et al.

134 P. 183

74 Wash. 601

STATE ex rel. SEFRIT v. SUPERIOR COURT OF WHATCOM COUNTY et al.

Supreme Court of Washington

August 7, 1913

Department 1. Application by the State of Washington, on the relation of Frank I. Sefrit, against the Superior Court of Whatcom County and another, to review an order of the trial court refusing to extend the time for the filing of the statement of facts in a criminal prosecution. Order reversed, with directions to extend the time.

Newman & Kindall and C. W. Howard, all of Bellingham, for relator.

Frank W. Bixby, of Bellingham, for respondents.

MOUNT J.

This is an application for a writ of certiorari to review an order of the lower court refusing to extend the time within which to file a statement of facts in the case of State v. Sefrit on appeal to this court. The record upon the motion for an extension of time for filing the statement of facts has been certified, and it has been stipulated that this hearing may be had and the decision rendered the same as though the writ had already been issued. We shall therefore proceed to a discussion of the points presented.

It is contended by the respondent that the writ will not issue in this proceeding for the reason that the relator has a plain remedy by appeal. It is apparent, however, that the remedy by appeal is not an adequate one. The judgment from which the appeal was taken in the case of State v. Sefrit was entered on the 26th day of May, 1913. The statute (Rem. & Bal. Code § 393) provides: 'A proposed bill of exceptions or statement of facts must be filed and served either before or within thirty days after the time begins to run within which an appeal may be taken from the final judgment in the cause or (as the case may be) from an order with a view to an appeal from which the bill or statement is proposed 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.' The utmost limit for filing the statement of facts under this provision is 90 days after the date of final judgment. If the relator is entitled to a review of this order so that it may be of benefit to him in case it is reversed, it is plain that the order must be reviewed within the 90 days; otherwise his statement of facts could not be filed in the case. It is also plain that by the ordinary procedure upon appeal this order refusing an extension of time cannot be reviewed until after the expiration of the 90 days. If the relator has an appeal from this order, it is too plain for argument that his remedy by appeal is entirely inadequate. We are, therefore, of the opinion that this order may be reviewed by certiorari.

The next question in the case and the principal one upon the merits is whether the trial court abused its discretion in refusing to extend the time for filing the statement of facts. The affidavits filed show that Egan Ridenour was the stenographer who took notes of the trial of the case of State v. Sefrit; that he was the only stenographer who took notes of the trial; and that no other stenographer could read his notes. These affidavits also show that this stenographer was continuously busy from the time the final judgment was entered, as above stated, until July 5, 1913; that it was impossible for him to get out the statement of facts in this case within the 30 days allowed by the statute. It is also shown that the hearing of the case on appeal would not be delayed by reason of an extension of time for the period of 90 days, as provided in the statute above quoted. It is true that the relator for several days after his conviction was undecided whether he would appeal the case or not; that he did not finally make up his mind to appeal the case until on or about June 2, 1913, when he gave his attorneys notice to that effect; and it was not until July 5 1913, that an order was given to the stenographer to proceed with the preparation of the statement of facts. But in the meantime, after the judgment and before the order was given, the stenographer had stated the condition of his work, both to the relator and to his counsel, and had informed them that it would be impossible for him...