Haas v. Gaddis

The opinion of the court was delivered by

Scott, J.

The defendants, Beckwith and Roderick,, appellees, move to strike the notice of appeal, and the statement of facts, and to dismiss the case for the following reasons: That no notice of appeal was given, and no notice to said appellees to appear at the time the statement of facts was settled; that the statement of facts is not connected with the transcript, or sufficiently identified to be considered in the case; that the transcript was not filed within the time prescribed by law; and that the instructions given by the court to the jury are not all here.

The transcript shows that notice was served June 12th,. 1888, on appellees by appellants, that they would give notice of an appeal August 18th, 1888, at an hour therein specified, before the judge at chambers, who tried the cause below, and would also apply at the same time to *92 have a statement of facts settled; that said notice was given within the time prescribed by law after the rendition of judgment, and was otherwise sufficient. That appellants duly appeared at the time and place specified, but were unable to give notice of an appeal or to apply for a settlement of a statement of facts, by reason of the absence of the judge before whom the cause was tried. That at said time a stipulation was entered into between appellants’ attorney and Elwood Evans, one of the attorneys for the defense, providing that a notice of appeal might be given and a statement of facts settled in said action on the 17th ■day of September, 1888, at the Montesano term of the district court, then and there to be held, at which time the notice of appeal was given and statement of facts settled. Attorneys Bignold and Robinson were present but refused to take any part in the settlement of the statement. Ap-pellees Beckwith and Roderick claim they were not parties to said stipulation and are not bound by it; that they were represented in this case only by the firm of Bignold & Robinson, and that Elwood Evans who signed said stipulation was an attorney for certain other of the defendants ■only. It further appears by the transcript that the action was commenced in June, 1887, and in July, 1887, Bignold ■& Robinson first appeared therein as attorneys for the defendants Gaddis, Beckwith and Roderick, and that they ■subsequently withdrew for the defendant Gaddis; that August 13th, 1887, Mason Irwin appeared as attorney for •defendant Ford; and on May 16th, 1888, at the time of the trial, Elwood Evans appeared as an attorney in the action apparently for all of the defendants, the journal entry relating thereto reciting that the defendants appeared by their attorneys Elwood Evans, Mason Irwin and Bignold &. Robinson; all of said attorneys subsequently admitted service generally for the defendants, of a notice of a motion for a new trial, and in the order of the court denying the motion Elwood Evans is again spoken of as an attorney for *93 the defendants, without specifying any particular ones. His only other act in the case was the signing of the stipulation aforesaid on August 18th, 1888. Prior thereto, the firm of Irwin & Evans appear as attorneys in the action by a written admission of service of the notice to settle the statement heretofore mentioned, especially limiting their appearance, however, for the defendant Ford; and Bignold & Robinson admit service thereof, specially for the defendants Beckwith and Boderieb, who move to dismiss this appeal, claiming that Elwood Evans who signed the stipulation was a member of the firm of Irwin & Evans, who only represented the defendant Ford, and that he had no authority to bind Beckwith and Roderick. If it appeared in the record that Elwood Evans was the Evans named in the firm of Irwin & Evans, the fact that the firm admitted service specially for the defendant Ford may have operated as a notice to the appellants that he was only authorized, and that he only intended to act for said defendant Ford, but it does not so appear. It does appear, however, by an affidavit of service in the record, that Mason Irwin is one of said firm, and he does not act individually in the case after the appearance of the firm name; Elwood Evans does, by signing the stipulation. From these facts the court will not presume that Elwood Evans was a member of said firm, or that he only represented the defendant Ford, when his every act indicates that he appeared for all of the defendants, and at no time does it appear that any objection was made thereto by the defendants Beckwith and Roderick until now. As to the point urged that the statement is not connected with the transcript and is no part of the case: It appears to have been filed in said cause in the court below and bears the same number (97) that the papers contained in the transcript were numbered below. The certificate of the trial judge mentions it as the statement in case No. 97, Haas Bros. v. D. J. Gaddis et al., and it appears to have been filed in this court at the same *94 time the transcript was filed. From these facts the court finds it is properly here and a part of the case; it is not essential that the statement should be attached to the transcript, the statute only requiring it to be sent up therewith. Act of 1883, p. 59, § 3.

As to the further point that the transcript was not filed within the time prescribed by law: It appears that it was filed December 27th, 1888, less than fifteen days before the first day of the next term of the supreme court thereafter; this appears to be contrary to the provisions of \ 460 of the code, taken in connection with £ 1 of the appeal act of 1883, requiring the transcript to be filed in this court within the time required by law, as $ 460 is the only place where the time of filing is specified. The supreme court, in the ease of Turner v. Saxon, 3 Wash. T. 473, where the question of notice only was involved, which is excepted in the act of 1883 from the operation of any other law, held that § 460 does not apply to cases appealed under the 1883 act. We are of the opinion that it does apply as to the time of filing the cause, but appellees not having taken advantage of such failure, in the manner provided by § 461 of the code, or before the transcript was filed, their objections will not be allowed to prevail.

As to the last point made, that the instructions are not all here, it appears that three instructions were given at the trial, and only two are contained in the record. There was no request or attempt by any of the parties to have the other one brought up. The instructions here are contained in the statement which is duly certified by the judge to contain all the material facts in the cause. It is not claimed by the appellees that the instruction omitted is material, nor do they ask to have it brought here, and as all the parties to the action and the judge who tried the cause seem to have regarded it as unimportant for a fair *95 ■consideration of the cause in this court, it is held by us to be unnecessary.

■ The motion to dismiss is therefore overruled.

ÁNDEits, C. J., and Stiles, J., concur. Hott and Dunbar, JJ., not sitting on the hearing of the motion.