Kracke v. Cohen

Bridges, J. — The respondent has moved to dismiss this appeal, for affirmance of the judgment, and for [330] judgment against the sureties on the appeal and supersedeas bonds. The grounds of the motion are that the appellant has taken no exceptions to the findings of fact or conclusions of law in a law case tried by the court without a jury, and that no bill of exceptions or statement of facts has been filed with the lower court within ninety days from the date of the entry of the judgment. The respondent has brought here a short record which shows, among other things, that, on October 17, 1921, the court, after having made its findings and conclusions, entered a judgment in favor of the respondent, and that, on January 4, 1922, appellants served and filed their notice of appeal, and on January 7, filed their appeal and supersedeas bond. The motion must be denied. In the first place, the clerk’s certificate to the transcript is that it contains such portions of the records and files as he has been directed by the respondent to transmit to this court. For all that appears, it may be that the appellant has moved against or demurred to the complaint or other pleadings of the respondent. If so, we would be required to review the actions of the trial court on them, even though there are no exceptions to the findings and conclusions and no statement of facts. Again, it may be that the appellant will contend that the judgment is not supported by the findings. We can review that question without either a statement of facts or exceptions to the findings of the court. But such a review would require us to examine into the merits of the case, a thing we will never do on a motion to dismiss. Some expressions may be found in our cases which at first glance may seem to indicate that we will examine into certain merits to determine whether a motion to dismiss will be granted. But we believe that all such expressions will be found in cases where the motion and the merits have been presented together. Hatch v. [331] Hover-Schiffner Co., 101 Wash. 551, 172 Pac. 817, is a case of this Mnd. The motion is denied. Parker, O. J., Fullerton, Mitchell, and Tolman, JJ., concur.