Whitehouse v. Nelson Dry Goods Co.

82 P. 161, 40 Wash. 189, 1905 Wash. LEXIS 958

• Court: Washington Supreme Court
• Decided: September 18, 1905
• Docket: No. 5602
• Status: Published

Opinion

Per Curiam.

This appeal is from an order of the lower court denying the appellant leave to sue a receiver. The question was heard upon a show cause order. The ruling was based entirely upon facts presented upon a return to the order to show cause. The record before us contains no certified statement of the facts upon which the court based its decision. Respondents move to dismiss the appeal for that reason. The motion must be granted, because the errors relied upon in appellant’s brief are based solely upon the evidence heard by the lower court. This evidence — or the facts upon which the order was made' — is not brought here by statement of facts or bill of exceptions, settled or certified by the trial court. There are some affidavits in the record, but there is no certificate of the trial judge that these affidavits were all the evidence considered at .the hearing, or that the facts therein contained are all the material facts presented.

Under the rule in Chevalier & Co. v. Wilson, 30 Wash. 227, 70 Pac. 487, the appeal must be dismissed.