Richmond v. Denny

Holcomb, J. This action was commenced June 7, 1917, against the defendants, who are the executors of the last will and testament of Orion O. Denny, who died in Seattle, February 26, 1916. Issues were joined and the cause set for trial January 3, 1918. On December 28, 1917, upon motion supported by affidavit, plaintiff asked for a continuance, and again on January 3, 1918, at the date of the trial, renewed her motion for continuance, supported by additional affidavits. These motions were both denied, whereupon, plaintiff being unable to proceed further, judgment of dismissal with costs was granted the defendants. From this judgment, plaintiff appeals. The controlling question is whether the trial court abused its discretion in denying a continuance and [203] in denying the motion for a new trial. The affidavits and letters purporting to have been used at the hearing and in support of the motions for a continuance and for a new trial, not having been embodied in a statement of facts or a bill of exceptions and by the certificate of the trial judge made a part of the record, must be stricken. Chevalier & Co. v. Wilson, 30 Wash. 227, 70 Pac. 487; Gray v. Granger, 48 Wash. 442, 93 Pac. 912; State v. Lee Wing Wah, 53 Wash. 294, 101 Pac. 873; Hayworth v. McDonald, 67 Wash. 496, 121 Pac. 984; Gazzam v. Zimmer, 68 Wash. 41, 122 Pac. 366; Powers v. Washington Portland Cement Co., 79 Wash. 1, 139 Pac. 615; Thurman v. Kildall, 80 Wash. 283, 141 Pac. 691; Van Dyke v. Johnson, 82 Wash. 377, 144 Pac. 540; Lebovitz v. Cogswell, 83 Wash. 174, 145 Pac. 212; State v. Armstrong, 87 Wash. 275, 151 Pac. 775; Kuykendall v. Lambie, 99 Wash. 366, 169 Pac. 853; Lansdown v. Huff, 103 Wash. 277, 174 Pac. 21; Davidson v. King, 103 Wash. 379, 174 Pac. 434; Norris-Short Co. v. Everson Mercantile Co., 103 Wash. 399, 174 Pac. 645. The record of this case being incomplete, the affidavits in support of the motions for a continuance and for a new trial being stricken, the appeal must be dismissed, and the judgment is affirmed. Main, C. J., Fullerton, Mount, and Parker, JJ., concur.