Ward v. Tucker

35 P. 126, 7 Wash. 399, 1893 Wash. LEXIS 172

Opinions

The opinion of the court was delivered by

Stiles, J.

The respondent did not appear at the settlement of the statement of facts, and there is no copy of the notice in the record. The judge who tried the cause certifies that the defendant had given due notice to the opposite party and his attorneys that the statement had been prepared, and filed, and that it would be settled upon a certain day, April 7, 1893. Upon this respondent moves to strike the statement, and the motion must be granted. The settlement of a statement of facts is the process by which this court acquires jurisdiction of the respondent for the purpose of inquiring into matters which, otherwise, would not be a part of the record. If the respondent appears and makes no objection, he waives notice, and the jurisdiction is complete, but if he remains away he has a right to say that the finding of the judge that he was duly served is not sufficient. We held substantially this in Mooney v. State, 2 Wash. 487 (28 Pac. Rep. 363), where the respondent made no appearance in this court.

In the case at bar appellant had ample notice of respondent’s position by his brief, and time to supply the record if notice was in fact given.

There being no assignment of error outside of the statement, the judgment is affirmed.

All concur.