Ward v. Springfield Fire & Marine Ins. Co.

• Decision Date: 03 October 1895
• Citation: 12 Wash. 631,42 P. 119
• Court: Washington Supreme Court
• Parties: WARD v. SPRINGFIELD FIRE & MARINE INS. CO.

42 P. 119

12 Wash. 631

WARD v. SPRINGFIELD FIRE & MARINE INS. CO.

Supreme Court of Washington

October 3, 1895

Motion to recall a remittitur and reinstate an appeal. For former report, see 38 P. 998.

ANDERS J.

When this cause came on for trial at the October, 1894, session of this court, the appeal was dismissed on motion of respondent for the reason that it appeared that the notice of appeal and the appeal bond had not been filed in the court below within the time limited by section 4 of the appeal act of March 8 1893 (Laws 1893, p. 121). On December 18, 1894, the appellant filed a motion or petition for a rehearing and for a reinstatement of the appeal, which, after due consideration was denied, and on April 26, 1895, the remittitur was transmitted to the trial court. On May 17, 1895, appellant filed this motion to recall the remittitur, and to reconsider the order of dismissal and refusal to reinstate the appeal as prayed in the previous motion.

By the section of the statute above mentioned the notice of appeal and the proof of service thereof become a part of the record, for the reason that the clerk is required to enter the same in the journal of the court. It is alleged in this motion, as it was in the previous one, that as matter of fact the notice of appeal was served on December 1 1894, and not on November 23, 1894, as appears by the record; and, in order to establish the truth of this allegation, the learned counsel for appellant have tendered several affidavits, which they ask this court to consider. This we cannot do. It is said in Elliott, App. Proc. § 186, that: "Appeals are tried by the record. The transcript is the source from which appellate tribunals obtain their knowledge of the facts involved in the controversy between the parties before them, as well as the source from which they derive their knowledge of the questions upon which it is their duty to pronounce judgment. *** The record as embodied in a properly prepared and duly authenticated transcript imports absolute verity, and cannot be aided, varied, or contradicted by extrinsic evidence." See, also, Haynes, New Trials & App. § 283; McDonald v. Bowman (Neb.) 58 N.W. 704; Carey v. Brown, 58 Cal. 180; In re Fifteenth Ave. Extension, 54 Cal. 179; Boyd v. Burrel, 60 Cal. 280. In the last-mentioned case, which is directly in point, the court said: "In denying a rehearing in this cause, we think it proper to say that the transcript shows that the notice of appeal was served on the 18th of December, 1879, and filed on the 30th of January, 1880. An attempt is made to show by affidavit before this court that it was filed at an earlier day, and within the time allowed by law. This cannot be allowed. It was so held in Boston v. Haynes, 31 Cal. 107. The record of the court below cannot be altered or amended by proof made in ...