Sellers v. Pacific Wrecking & Salvage Co.

Washington Supreme Court

Sellers v. Pacific Wrecking & Salvage Co.

74 P. 1056, 34 Wash. 111, 1904 Wash. LEXIS 318

CourtWashington Supreme Court

DecidedJanuary 13, 1904

DocketNo. 4705

StatusPublished

Cited by5 cases

This text of 74 P. 1056 (Sellers v. Pacific Wrecking & Salvage Co.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sellers v. Pacific Wrecking & Salvage Co., 74 P. 1056, 34 Wash. 111, 1904 Wash. LEXIS 318 (Wash. 1904).

Pincite

Opinion

Per Curiam.

In this action the respondent sued the appellant to recover upon a promissory note. An answer [112]*112was filed to the complaint, and to the answer a reply, raising an issue of fact. Upon this issue a trial was had by jury, in the absence of the appellant, resulting in a judgment for the respondent. Between the return of the verdict and the entry of judgment, the appellant appeared, and objected to the entry of a judgment on the verdict. On its motion being overruled and judgment entered, it moved to vacate the judgment, which motion being also overruled, it appealed to this court.

The appellant based its objection to the entry of judgment, and its motion to vacate, upon the ground that it had not received sufficient, or any, notice of the setting of the case for trial, and supported its motion by affidavits. These affidavits have not been brought to this court. True, copies of certain affidavits appeared in the transcript over the certificate of the clerk, but as we have repeatedly held, this is insufficient to bring them to the consideration of this court. Chevalier & Co. v. Wilson, 30 Wash. 227, 70 Pac. 487, and cases cited.

The record which we can properly consider fails to show any cause for reversal. While it shows that the case was put at issue, that a note of issue was filed and served, that the case was afterwards set down for trial, and thereafter tried, it fails to show that the appellant had no notice of any of these several proceedings. The superior court is a court of general jurisdiction. Every intendment is in favor of the regularity of its record; and, unless that record shows affirmatively that error was committed, error cannot be predicated thereon. In other words, error is never presumed ; it must be shown affirmatively by the record. Tested by these rules, the record before us requires an affirmance of the judgment appealed from, and it is so ordered.

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Per Curiam.

In this action the respondent sued the appellant to recover upon a promissory note. An answer [112]*112was filed to the complaint, and to the answer a reply, raising an issue of fact. Upon this issue a trial was had by jury, in the absence of the appellant, resulting in a judgment for the respondent. Between the return of the verdict and the entry of judgment, the appellant appeared, and objected to the entry of a judgment on the verdict. On its motion being overruled and judgment entered, it moved to vacate the judgment, which motion being also overruled, it appealed to this court.

The appellant based its objection to the entry of judgment, and its motion to vacate, upon the ground that it had not received sufficient, or any, notice of the setting of the case for trial, and supported its motion by affidavits. These affidavits have not been brought to this court. True, copies of certain affidavits appeared in the transcript over the certificate of the clerk, but as we have repeatedly held, this is insufficient to bring them to the consideration of this court. Chevalier & Co. v. Wilson, 30 Wash. 227, 70 Pac. 487, and cases cited.

The record which we can properly consider fails to show any cause for reversal. While it shows that the case was put at issue, that a note of issue was filed and served, that the case was afterwards set down for trial, and thereafter tried, it fails to show that the appellant had no notice of any of these several proceedings. The superior court is a court of general jurisdiction. Every intendment is in favor of the regularity of its record; and, unless that record shows affirmatively that error was committed, error cannot be predicated thereon. In other words, error is never presumed ; it must be shown affirmatively by the record. Tested by these rules, the record before us requires an affirmance of the judgment appealed from, and it is so ordered.

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Bluebook (online)

74 P. 1056, 34 Wash. 111, 1904 Wash. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sellers-v-pacific-wrecking-salvage-co-wash-1904.

Opinion

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