Humes v. Hillman

80 P. 1104, 39 Wash. 107, 1905 Wash. LEXIS 824

• Court: Washington Supreme Court
• Decided: May 23, 1905
• Docket: No. 5682
• Status: Published

Opinion

Dunbar, J.

Respondent moves to strike from tbe record tbe statement of facts filed by appellants, and to dismiss tbe appeal from tbe judgment, entered herein by the superior court of King county, Washington, for the reason, that the statement of facts was not filed within thirty days of tbe date of tbe judgment; tbat no extension for tbe filing of said statement was granted by order of court, upon notice to respondent or by stipulation; and tbat tbe transcript was not filed or certified witbin ninety days from tbe serving and filing of tbe notice of appeal.

Tbe judgment was entered January 4, 1905; motion for new trial overruled January'31, 1905; statement of facts served April 7, 1905; statement of facts settled April 15, 1905. Under Pierce’s Code, § 679, it is evident that tbe statement of facts was not filed witbin tbe time prescribed, by law, unless tbe time was enlarged by stipulation, or by order of court made on notice to tbe adverse party, and tbat tbe transcript was< not filed witbin tbe provisions of § 1061, of Piercers Code.

• There'is m> excuse offered in the record for tbe failure to settle tbe statement of facts within tbe time prescribed by tbe statute, excepting tbe claim tbat an oral stipulation was entered into between tbe attorneys for tbe respondent and appellants, whereby tbe time was to be extended. This is denied by tbe attorney for the respondent, and affidavits are presented by both tbe respondent and tbe appellants upon this proposition. This court has uniformly held tbat it is not witbin its province, to decide between attorneys on questions of this bind, and tbe affidavits, in this case, with criminating and recriminating accusations, exemplify tbe wisdom of the rule. There must be a record here upon which tbe court can act.

It is contended by tbe attorney for tbe appellants tbat, inasmuch as tbe counsel for respondent agreed to enter into a written stipulation, such agreement is equivalent to a written stipulation. But there seems to be no force in this contention. Even conceding, without deciding, tbat such an agreement bad been made, tbe agreement to' enter into a written stipulation was as much an oral agreement as any other oral agreement.

There having been no> written stipulation, or order of tbe court on notice to the adverse party, to extend the time for filing the statement of facts> and no excuse being offered for a failure in that respect, the statement of facts will be stricken; and the transcript, not having been filed within the time prescribed by law, without any sufficient excuse for such failure, and not having been filed at the time this motion was made, will also be stricken, and the cause dismissed.

Mount, C. J., Root, Hadley, Fullerton, Crow, and Rudkin, JJ., concur.