Pattison v. Walker

100 P.2d 20, 2 Wash. 2d 62

• Court: Washington Supreme Court
• Decided: December 22, 1939
• Docket: No. 27567.
• Status: Published

Opinions

Main, J.

The plaintiffs brought this action seeking to have a real estate mortgage canceled and the title to the property covered thereby quieted in them as against the claimed lien of the mortgage. The defendant denied the right of the plaintiffs to any relief and, by cross-complaint, sought to foreclose the mortgage. The trial to the court without a jury resulted in a decree denying any relief to the plaintiffs and ordering the foreclosure of the mortgage. From this decree, the plaintiffs appeal.

At the threshold of this appeal, there is a jurisdictional question the decision of which will require the striking of the statement of facts. The decree was entered November 5, 1938. Motion for new trial was made November 7, 1938. The order denying the motion was signed and filed December 17, 1938. The notice of appeal was made December 31, 1938.

A purported statement of facts, in narrative form, was filed March 16, 1939. Subsequently, the respondent moved to strike this purported statement of facts and noted motion for hearing on a certain day. When the matter came before the court, it was stipulated by the attorneys for the respective parties that the motion might be stricken and that the appellants would prepare and file a transcript of the proceedings of all the trial, so far as they pertained to the first cause of action. This latter statement of facts was filed April 28, 1939, more than ninety days after the order denying the motion for new trial was signed and filed.

Under the provisions of Rule of Supreme Court IX, 193 Wash. 9-a, it is necessary that a bill of exceptions or statement of facts be served and filed either before or within ninety days after the time begins to run within which an appeal may be taken from a final judgment in the case. The filing of the statement within a ninety-day period, as required by the rule and statute, is jurisdictional and may be raised at any time, or may be raised by the court of its own motion. McCrabbe v. Jones, 171 Wash. 326, 17 P. (2d) 860; Nudd v. Seattle, 188 Wash. 273, 62 P. (2d) 43; Louring v. Louring, 199 Wash. 351, 91 P. (2d) 729.

Parties to the litigation cannot, by stipulation, give this court authority to entertain jurisdiction. Washington Beauty College v. Huse, 195 Wash. 160, 80 P. (2d) 403; State v. Diamond Tank Transport, 200 Wash. 206, 93 P. (2d) 313.

It is said, however, that the second statement of facts was but an amendment of the prior narrative statement. In the case of Tremblay v. Nichols, 187 Wash. 109, 59 P. (2d) 1123, it was held that a supplemental statement filed after the ninety-day period could not be entertained. In the case now before us, the second statement is referred to as an amendment of the first. But this is no different than if it had been called a supplemental statement. It does not appear, however, that the second statement was intended, when it was filed, to supplement the first. The reason given for the failure to file the second statement in time was that the court reporter had been ill and caused the delay in its preparation.

In each of the cases of State v. Sholund, 153 Wash. 398, 279 Pac. 591, and State v. Thompson, 154 Wash. 663, 283 Pac. 182, the statement of facts was stricken because not filed within the ninety-day period. While it is not recited in either of those opinions, the excuse sought to be given for not filing the statement within the required period was that the court reporter’s eyes during that period were in such condition that she was unable to transcribe her notes. The effect of those cases is that illness is not an excuse.

There is no alternative but to strike the statement of facts, and it is so ordered. The statement of facts having been stricken, there is nothing in the record upon which a contention for the reversal of the decree can be based, and it will be affirmed.

Blake, C. J., Steinert, Millard, Simpson, and Jeffers, JJ., concur.