Crowley v. Byrne

Washington Supreme Court

Crowley v. Byrne

143 P. 873, 82 Wash. 146, 1914 Wash. LEXIS 1480

CourtWashington Supreme Court

DecidedNovember 5, 1914

DocketNo. 11988

StatusPublished

Cited by1 cases

This text of 143 P. 873 (Crowley v. Byrne) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crowley v. Byrne, 143 P. 873, 82 Wash. 146, 1914 Wash. LEXIS 1480 (Wash. 1914).

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Opinion

Main, J.

The purpose of this action was to quiet the title to real property. After the issues were formed, the [147]*147cause was tried to the court. A judgment was entered dismissing the action. The plaintiff appeals.

The respondents open their answering brief with a motion to dismiss the appeal because the appellant had failed to file an abstract which satisfied the statute and the court rules. At or prior to the time the appellant served his opening brief, he served and filed an abstract. The portion of this abstract which is devoted to the testimony covers less than four pages of double space typewritten matter. The statement of facts covers 410 pages. There are nine assignments of error in the appellant’s brief, most of which present questions of fact. The statement of the case in the brief of the appellant does not refer to the abstract, as required by rule 8, but refers to the statement of facts. Much of the evidence abstracted is the conclusion of the abstracter as to the effect of the witnesses’ testimony, rather than a statement as to what the testimony actually was. The abstract does not present sufficient of the testimony for a review of the case, it being an equity case, which is tried here de novo, and the questions being largely those of fact, as shown by the assignments of error.

It is true that a supplemental abstract was prepared, served, and filed by the respondents, which properly covers the testimony. This, however, cannot be substituted as the abstract for the appellant. To so hold, would shift the burden of the appeal from the appellant to the respondent. This is not contemplated either by the statute or the rules; and to require the respondents to bear the burden of the appeal in this form would be both unreasonable and unjust. The respondents’ motion to dismiss was presented in their brief and was also urged upon oral argument. No reply thereto has been made by the appellant. The abstract presented by the appellant was a compliance neither with the letter nor the spirit of the statute (Laws 1913, ch. 116, p. 349; 3 Rem. & Bal. Code, § 1730-1 et seq.) and the court rules. Ollar-Robinson Co. v. O’Neill, 80 Wash. 1, 141 Pac. 194; Caldwell v. [148]*148Klyce, 80 Wash. 469, 141 Pac. 1042; Union Trust & Sav. Bank v. Amery, 81 Wash. 133, 142 Pac. 492. Upon the authority of those cases, there is' no alternative but to dismiss the appeal, and it is so ordered.

Appeal dismissed.

Crow, C. J., Chadwick, Ellis, and Gose, JJ., concur.

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Main, J.

The purpose of this action was to quiet the title to real property. After the issues were formed, the [147]*147cause was tried to the court. A judgment was entered dismissing the action. The plaintiff appeals.

The respondents open their answering brief with a motion to dismiss the appeal because the appellant had failed to file an abstract which satisfied the statute and the court rules. At or prior to the time the appellant served his opening brief, he served and filed an abstract. The portion of this abstract which is devoted to the testimony covers less than four pages of double space typewritten matter. The statement of facts covers 410 pages. There are nine assignments of error in the appellant’s brief, most of which present questions of fact. The statement of the case in the brief of the appellant does not refer to the abstract, as required by rule 8, but refers to the statement of facts. Much of the evidence abstracted is the conclusion of the abstracter as to the effect of the witnesses’ testimony, rather than a statement as to what the testimony actually was. The abstract does not present sufficient of the testimony for a review of the case, it being an equity case, which is tried here de novo, and the questions being largely those of fact, as shown by the assignments of error.

It is true that a supplemental abstract was prepared, served, and filed by the respondents, which properly covers the testimony. This, however, cannot be substituted as the abstract for the appellant. To so hold, would shift the burden of the appeal from the appellant to the respondent. This is not contemplated either by the statute or the rules; and to require the respondents to bear the burden of the appeal in this form would be both unreasonable and unjust. The respondents’ motion to dismiss was presented in their brief and was also urged upon oral argument. No reply thereto has been made by the appellant. The abstract presented by the appellant was a compliance neither with the letter nor the spirit of the statute (Laws 1913, ch. 116, p. 349; 3 Rem. & Bal. Code, § 1730-1 et seq.) and the court rules. Ollar-Robinson Co. v. O’Neill, 80 Wash. 1, 141 Pac. 194; Caldwell v. [148]*148Klyce, 80 Wash. 469, 141 Pac. 1042; Union Trust & Sav. Bank v. Amery, 81 Wash. 133, 142 Pac. 492. Upon the authority of those cases, there is' no alternative but to dismiss the appeal, and it is so ordered.

Appeal dismissed.

Crow, C. J., Chadwick, Ellis, and Gose, JJ., concur.

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143 P. 873, 82 Wash. 146, 1914 Wash. LEXIS 1480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowley-v-byrne-wash-1914.

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