Schwellenbach, J.
— Respondents have moved this court to strike the statement of facts for the reason that the [422]*422same was not filed within ninety days from the entry of the judgments. They have also moved to dismiss the appeal of the appellant for the reasons that appellant has not filed its brief on appeal, and that the appeal has not been diligently prosecuted in that more than eight months have elapsed since the filing of the statement of facts.
Jack Hamilton, John Shannon, and the executors of the estates of Archie Prior and Robert Prior, deceased, and Charles O. Murphy commenced three separate actions against Kiona-Benton irrigation district and its directors, in the superior court for Benton county. The three cases were consolidated for trial, and later, for the purposes of appeal to this court. The jury rendered verdicts for the plaintiffs against the defendant irrigation district only, in each case, on June 25, 1952.
June 27, 1952, motions were made for judgments notwithstanding the verdict or, in the alternative, for new trials. The motions were argued at Prosser before Honorable B. B. Horrigan, judge for Franklin and Benton counties, who resides at Pasco. The court minutes for July 3, 1952, state:
“This matter coming on for argument on Motion for Judgment N.O.Y. Plaintiffs being represented by Dean W. Loney of counsel for Jack Hamilton, and Herbert H. Davis for Charles O. Murphy and John Shannon, et al. Defendants appearing through their attorneys, R. M. White, Kenneth Hawkins and S. E. Chaffee. Argument by Mr. Hawkins for Defendant. Motions overruled. Motions for New Trial and Judgment N.O.V. denied.”
Judgments were signed July 8, 1952, and were filed for record July 10, 1952. When Judge Horrigan sent them to the clerk of Benton county, he wrote:
“B. B. Horrigan, Judge Orris L. Hamilton, Judge
Superior Court of the State of Washington Benton and Franklin Counties Pasco, Washington July 8th, 1952
“Clerk of the Superior Court Benton County Prosser, Washington
[423]*423In re: Jack Hamilton vs. Kiona-Benton Irrigation Dis-; trict
John Shannon, et al, vs. Kiona-Benton Irrigation District
Chas. O. Murphy, vs. Kiona-Benton Irrigation District
Dear Mr. Kemp:
I am enclosing judgment which I have signed in the above three cases.
“Sincerely yours,
B. B. Horrigan [signed] B. B. Horrigan.
P.S. At the bottom of the judgment, I have added: “Motion for New Trial and Judgment N.O.V. are denied.” BBH: em enc.
cc — Stephen E. Chaffee White & White Sensney & Davis Moulton, Powell, Gess & Loney”
July 14, 1952, appellant gave notice of appeal. It was signed by Kenneth C. Hawkins, Stephen E. Chaffee, and White & White, attorneys for appellant, and stated:
“You and Each of You Are Hereby Notified that the defendant Kiona-Benton Irrigation District does hereby appeal to the Supreme Court of the State of Washington from all of that certain judgment made and entered herein by the above-entitled Court on the 10th day of July, 1952, signed by the Honorable B. B. Horrigan on the 8th day of July, 1952; ...”
The statement of facts was filed October 9, 1952, and was certified by the trial court April 16, 1953.
Rule on Appeal 41, 34A Wn. (2d) 42, provides that within thirty days after the statement of facts shall have been filed, the appellant shall serve on the respondent three copies of a printed brief on appeal, and shall file with the clerk of the supreme court twenty-five copies thereof; together with proof of service.
Rule on Appeal 51, 34A Wn. (2d) 55, provides that a respondent may move to dismiss an appeal on the ground that “the appellant’s brief has not been served or filed, [424]*424. . . or that the appeal has not been diligently prosecuted.” Rule 52 provides that the supreme court may grant such motion in whole or in part. In other words, it is discretionary, rather than mandatory.
Although the statement of facts was filed October 9, 1952, it was not certified until April 16, 1953, and the motion to dismiss the appeal was filed in this court July 6, 1953. Under the circumstances, we feel that respondents are in no position to complain that the appeal has not been diligently prosecuted. The motion to dismiss the appeal is denied.
Rule on Appeal 34, 34A Wn. (2d) 36, provides:
“A proposed statement of facts must be served on one of the adverse parties and filed in the office of the clerk of the superior court in which the case was tried within ninety days after the date of entry of the final judgment, or appealable order, for the purpose of appealing from which the statement is proposed and notice of the filing thereof shall also be served on all other adverse parties: Provided, That the superior court or the Chief Justice of the supreme court may extend the time not to exceed thirty days for the filing of the proposed statement of facts if good cause be shown and the application for extension of time be made within the ninety-day period. The application may be made after giving notice to opposing counsel.”
Rule on Appeal 32, 34A Wn. (2d) 32, as amended, provides that, in order that the supreme court may acquire jurisdiction of an appeal in a civil cause, the appellant must, among other things, “serve and file a proposed statement of facts when necessary to consider the questions presented — . . .”
September 22, 1952, Mr. Hawkins, attorney for appellant, who lives in Yakima, wrote to Mrs. Edna Mooney, at Pasco. She was the court reporter who was preparing the statement of facts. He inquired how she was getting along, mentioning that the judgment was entered July 10th, and that, under the new rules, a thirty-day extension could be obtained, provided it was requested before the ninety days were up. • She advised him on October 3rd that [425]*425she had sent the statement to Mr..White that day by express. Mr. White lives at Prosser, the county seat of Benton county. October 6th, the statement was expressed from Prosser to Mr. Hawkins at Yakima, where he received it October 8th. Edna Mooney was named as the shipper. Due and timely service of the statement was acknowledged on October 9th by Sensney & Davis and Moulton, Powell, Gess & Loney, although Mr. Hawkins in his affidavit alleges that Mr. Powell acknowledged service on October 8th. At any rate, the statement was filed October 9th, the ninety-first day. Although counsel may have felt secure in the belief that the statement of facts would be furnished within the ninety-day period, he did not petition the superior court or the chief justice for an extension of time of thirty days within which to file it.
The proviso in Rule 34 was added to our rules on appeal in order to alleviate an appellant’s burden in a situation such as this. Furthermore, the statement was expressed to Mr. White, in Prosser, on October 3rd. He was one of the attorneys who signed the notice of appeal. All of the attorneys for appellant must be charged with knowledge of the shortness of time when the statement was expressed to Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
Schwellenbach, J.
— Respondents have moved this court to strike the statement of facts for the reason that the [422]*422same was not filed within ninety days from the entry of the judgments. They have also moved to dismiss the appeal of the appellant for the reasons that appellant has not filed its brief on appeal, and that the appeal has not been diligently prosecuted in that more than eight months have elapsed since the filing of the statement of facts.
Jack Hamilton, John Shannon, and the executors of the estates of Archie Prior and Robert Prior, deceased, and Charles O. Murphy commenced three separate actions against Kiona-Benton irrigation district and its directors, in the superior court for Benton county. The three cases were consolidated for trial, and later, for the purposes of appeal to this court. The jury rendered verdicts for the plaintiffs against the defendant irrigation district only, in each case, on June 25, 1952.
June 27, 1952, motions were made for judgments notwithstanding the verdict or, in the alternative, for new trials. The motions were argued at Prosser before Honorable B. B. Horrigan, judge for Franklin and Benton counties, who resides at Pasco. The court minutes for July 3, 1952, state:
“This matter coming on for argument on Motion for Judgment N.O.Y. Plaintiffs being represented by Dean W. Loney of counsel for Jack Hamilton, and Herbert H. Davis for Charles O. Murphy and John Shannon, et al. Defendants appearing through their attorneys, R. M. White, Kenneth Hawkins and S. E. Chaffee. Argument by Mr. Hawkins for Defendant. Motions overruled. Motions for New Trial and Judgment N.O.V. denied.”
Judgments were signed July 8, 1952, and were filed for record July 10, 1952. When Judge Horrigan sent them to the clerk of Benton county, he wrote:
“B. B. Horrigan, Judge Orris L. Hamilton, Judge
Superior Court of the State of Washington Benton and Franklin Counties Pasco, Washington July 8th, 1952
“Clerk of the Superior Court Benton County Prosser, Washington
[423]*423In re: Jack Hamilton vs. Kiona-Benton Irrigation Dis-; trict
John Shannon, et al, vs. Kiona-Benton Irrigation District
Chas. O. Murphy, vs. Kiona-Benton Irrigation District
Dear Mr. Kemp:
I am enclosing judgment which I have signed in the above three cases.
“Sincerely yours,
B. B. Horrigan [signed] B. B. Horrigan.
P.S. At the bottom of the judgment, I have added: “Motion for New Trial and Judgment N.O.V. are denied.” BBH: em enc.
cc — Stephen E. Chaffee White & White Sensney & Davis Moulton, Powell, Gess & Loney”
July 14, 1952, appellant gave notice of appeal. It was signed by Kenneth C. Hawkins, Stephen E. Chaffee, and White & White, attorneys for appellant, and stated:
“You and Each of You Are Hereby Notified that the defendant Kiona-Benton Irrigation District does hereby appeal to the Supreme Court of the State of Washington from all of that certain judgment made and entered herein by the above-entitled Court on the 10th day of July, 1952, signed by the Honorable B. B. Horrigan on the 8th day of July, 1952; ...”
The statement of facts was filed October 9, 1952, and was certified by the trial court April 16, 1953.
Rule on Appeal 41, 34A Wn. (2d) 42, provides that within thirty days after the statement of facts shall have been filed, the appellant shall serve on the respondent three copies of a printed brief on appeal, and shall file with the clerk of the supreme court twenty-five copies thereof; together with proof of service.
Rule on Appeal 51, 34A Wn. (2d) 55, provides that a respondent may move to dismiss an appeal on the ground that “the appellant’s brief has not been served or filed, [424]*424. . . or that the appeal has not been diligently prosecuted.” Rule 52 provides that the supreme court may grant such motion in whole or in part. In other words, it is discretionary, rather than mandatory.
Although the statement of facts was filed October 9, 1952, it was not certified until April 16, 1953, and the motion to dismiss the appeal was filed in this court July 6, 1953. Under the circumstances, we feel that respondents are in no position to complain that the appeal has not been diligently prosecuted. The motion to dismiss the appeal is denied.
Rule on Appeal 34, 34A Wn. (2d) 36, provides:
“A proposed statement of facts must be served on one of the adverse parties and filed in the office of the clerk of the superior court in which the case was tried within ninety days after the date of entry of the final judgment, or appealable order, for the purpose of appealing from which the statement is proposed and notice of the filing thereof shall also be served on all other adverse parties: Provided, That the superior court or the Chief Justice of the supreme court may extend the time not to exceed thirty days for the filing of the proposed statement of facts if good cause be shown and the application for extension of time be made within the ninety-day period. The application may be made after giving notice to opposing counsel.”
Rule on Appeal 32, 34A Wn. (2d) 32, as amended, provides that, in order that the supreme court may acquire jurisdiction of an appeal in a civil cause, the appellant must, among other things, “serve and file a proposed statement of facts when necessary to consider the questions presented — . . .”
September 22, 1952, Mr. Hawkins, attorney for appellant, who lives in Yakima, wrote to Mrs. Edna Mooney, at Pasco. She was the court reporter who was preparing the statement of facts. He inquired how she was getting along, mentioning that the judgment was entered July 10th, and that, under the new rules, a thirty-day extension could be obtained, provided it was requested before the ninety days were up. • She advised him on October 3rd that [425]*425she had sent the statement to Mr..White that day by express. Mr. White lives at Prosser, the county seat of Benton county. October 6th, the statement was expressed from Prosser to Mr. Hawkins at Yakima, where he received it October 8th. Edna Mooney was named as the shipper. Due and timely service of the statement was acknowledged on October 9th by Sensney & Davis and Moulton, Powell, Gess & Loney, although Mr. Hawkins in his affidavit alleges that Mr. Powell acknowledged service on October 8th. At any rate, the statement was filed October 9th, the ninety-first day. Although counsel may have felt secure in the belief that the statement of facts would be furnished within the ninety-day period, he did not petition the superior court or the chief justice for an extension of time of thirty days within which to file it.
The proviso in Rule 34 was added to our rules on appeal in order to alleviate an appellant’s burden in a situation such as this. Furthermore, the statement was expressed to Mr. White, in Prosser, on October 3rd. He was one of the attorneys who signed the notice of appeal. All of the attorneys for appellant must be charged with knowledge of the shortness of time when the statement was expressed to Mr. Hawkins on October 6th.
In Wheeler v. S. Birch & Sons Constr. Co., 27 Wn. (2d) 325, 178 P. (2d) 331, where the statement of facts had not been filed within the ninety-day period, it was shown that the delay was due to the fact that the court reporter in King county had two long transcripts ordered before the appellants’ order was given. It was also shown that, between the entry of the judgment and the time the statement was due to be filed, the operators who type from the dictated record of the case were on strike, and that it was a physical impossibility to complete the statement on time. In ordering the statement of facts stricken, we quoted from State ex rel. Grange Store v. Riddell, 27 Wn. (2d) 134, 177 P. (2d) 78:
.“The filing of a statement of facts within the ninety-day period, as required by the foregoing rule, is jurisdictional. Pattison v. Walker, 2 Wn. (2d) 62, 97 P. (2d) 160, 100 P. [426]*426(2d) 20; McKasson v. Huntworth, 5 Wn. (2d) 661, 105 P. (2d) 44; Nash v. Nash, 23 Wn. (2d) 448, 161 P. (2d) 326. CF. State v. Brown, 26 Wn. (2d) 857, 176 P. (2d) 293.
“Another rule, similar in effect and equally well settled in this jurisdiction, is that, if a statement of facts be filed after the time permitted by Rule 9 (1), the statement will be stricken, whether or not the opposing side moves to that end. Pattison v. Walker, supra; McKasson v. Huntworth, supra; Martell v. Raymond, 11 Wn. (2d) 165, 118 P. (2d) 950; Lilly Co. v. Parrino, 18 Wn. (2d) 128, 138 P. (2d) 206; Falk v. Rose, 18 Wn. (2d) 333, 139 P. (2d) 634.”
Contention is also made that the order denying a motion for a new trial, which was included as a part of the judgment, did not specify the reasons therefor, as required by Rule of Superior Courts 16, 34A Wn. (2d) 118; that the matter is therefore still pending before the trial court, and that the ninety-day period for filing the statement of facts has not commenced to run. When appellant appealed “from all of that certain judgment made and entered herein by the above entitled court on the 10th day of July, 1952,” it thereby waived any right to rely upon Rule 16.
; The motion to strike the statement of facts is granted.
Mallery, Hill, Hamley, Donworth, Finley, Weaver, and Olson, JJ. concur.