Meeker v. Gardella

7 P. 889, 2 Wash. Terr. 355

• Court: Washington Territory
• Decided: July 15, 1885
• Status: Published

Opinion

Opinion by

Greene, Chief Justice.

This is a motion to strike the evidence from the files of this Court, and dismiss the appeal. Erom inspection of the tran•script, we find that notice of appeal was regularly given and entered of record in the lower Court, conformably to the Appeal Act of 1883, and that afterwards proceedings were instituted with a view to taking and perfecting an appeal under the provisions of the Code. In course of these latter proceedings, and in regular form, this mass of evidence has been certified to this Court, by the clerk of the Court below, as written evidence.

The evidence could not, in our opinion, be so certified. If it was to be brought up at all, it should have been removed here ■by compliance with the provisions of the Act of 1883. After notice of appeal duly given and entered in the lower Court, there remained in that Court no cause that could be appealed under the Code.

But the inadmisability of this mass of evidence is no ground dEor dismissing the appeal, although the exclusion of it may render the appeal inefficacious.

Let the motion, so far forth as it calls for the striking out the ■evidence, be granted; but so far forth as it asks for dismissal of the appeal, be denied.

We concur: S. C. Wingard, Associate Justice.

George Turner, Associate Justice.