Norager v. Norwald

Washington Territory

Norager v. Norwald

14 P. 593, 3 Wash. Terr. 246, 1887 Wash. Terr. LEXIS 48

DecidedJanuary 10, 1887

StatusPublished

This text of 14 P. 593 (Norager v. Norwald) is published on Counsel Stack Legal Research, covering Washington Territory primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Norager v. Norwald, 14 P. 593, 3 Wash. Terr. 246, 1887 Wash. Terr. LEXIS 48 (Wash. Super. Ct. 1887).

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Opinions

Mr. Justice Turner

delivered the opinion of the court.

An appellant in an action at law who has saved exceptions which can he preserved by a statement of facts ■only, or by a bill of exceptions, and who has done all that the law requires to entitle him to a settlement of .such facts by the judge of the lower court, ought not to he considered in fault, if, pending action on his proposed statement, he fails to cause an incomplete transcript in this court. Actus curise neminem gravabit. In such a case, it being shown to this court, on application •for a writ of mandamus, that the judge has failed or refused, on insufficient grounds, to settle the statement of facts, and. an alternative writ having issued, the appellee •ought not, pending the determination of the court in the mandamus proceeding, to have an affirmance of his judgment under section 461 of the Code. The court would not have awarded the alternative writ without a showing establishing at least that the failure to complete the record in the court below, so that a proper transcript could be filed here, was owing to circumstances over which the appellant had no control. The showing on the motion for mandamus may properly he looked to and .considered on the application to affirm.

The writ of mandamus goes from this court only in aid [248]*248of its appellate jurisdiction, and while not properly a step in the main cause before the latter has reached this court, it yet bears sufficient relation to it to permit the-showing to be considered therein when the latter has reached us by the intervention of the appellee. It may be that the appellant has been guilty of laches in failing to sooner prosecute the mandamus suit. If so, he will not succeed in that suit. But certainly if he deserves to succeed therein, the appellee is not entitled at this time-to an affirmance of his judgment; and whether he deserves to succeed therein is to be determined in that suit,, and not on this motion to affirm.

We think the motion to affirm should stand over without action for the present.

Langford, J., concurred.

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Mr. Justice Turner

delivered the opinion of the court.

An appellant in an action at law who has saved exceptions which can he preserved by a statement of facts ■only, or by a bill of exceptions, and who has done all that the law requires to entitle him to a settlement of .such facts by the judge of the lower court, ought not to he considered in fault, if, pending action on his proposed statement, he fails to cause an incomplete transcript in this court. Actus curise neminem gravabit. In such a case, it being shown to this court, on application •for a writ of mandamus, that the judge has failed or refused, on insufficient grounds, to settle the statement of facts, and. an alternative writ having issued, the appellee •ought not, pending the determination of the court in the mandamus proceeding, to have an affirmance of his judgment under section 461 of the Code. The court would not have awarded the alternative writ without a showing establishing at least that the failure to complete the record in the court below, so that a proper transcript could be filed here, was owing to circumstances over which the appellant had no control. The showing on the motion for mandamus may properly he looked to and .considered on the application to affirm.

The writ of mandamus goes from this court only in aid [248]*248of its appellate jurisdiction, and while not properly a step in the main cause before the latter has reached this court, it yet bears sufficient relation to it to permit the-showing to be considered therein when the latter has reached us by the intervention of the appellee. It may be that the appellant has been guilty of laches in failing to sooner prosecute the mandamus suit. If so, he will not succeed in that suit. But certainly if he deserves to succeed therein, the appellee is not entitled at this time-to an affirmance of his judgment; and whether he deserves to succeed therein is to be determined in that suit,, and not on this motion to affirm.

We think the motion to affirm should stand over without action for the present.

Langford, J., concurred.

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Bluebook (online)

14 P. 593, 3 Wash. Terr. 246, 1887 Wash. Terr. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norager-v-norwald-washterr-1887.