Jones v. Jenkins

The opinion of the court was delivered by Scott, J. The first point to be considered in this case arises upon a motion made by respondent to have the statement of facts stricken from the record. Judgment was rendered in the cause on the 14th day of July, 1890. On the 21st day of said month appellants filed a purported statement of the facts in the case, for the purpose of having the same settled accordingly, which statement, the respondent claims, totally failed to comply with the provisions relating thereto in the appeal act, approved March 22,1890, under which this appeal was taken. The respondent objected to the statement offered, and it seems he caused to be prepared a full and complete statement of the facts in the case, which was filed on the 29th day of November, 1890, and was the one adopted and settled by the trial judge. The respondent obj ected to the settlement of any statement,because the time therefor had lapsed, no proposed statement which substantially complied with the law having been filed within the time prescribed, the statement which was offered within the — 19 — time allowed having been rejected on the ground of its insufficiency. For these.reasons we are asked to strike the statement of facts from the record. The judge, in his certificate, says that he refused to sign the first statement offered because it did not contain all the material facts, evidence, testimony and exceptions given upon the trial. He caused it to be marked “ Exhibit A,” and sent up with the record. Secs. 4 and 5 of said appeal act are as follows: “Sec. 4. In all cases and proceedings in which an appeal lies to the supreme court, any party feeling himself aggrieved may have any material fact or facts, not already a part of the record, made so by a statement of facts. Such facts shall be settled and agreed on in the following manner: The party desiring to settle a statement of facts shall prepare and file with the clerk of the superior court a statement of facts, complete and ready for signing, and shall, within thirty days after the decision, order or judgment to be appealed from was made or rendered, give notice to the opposite party or his attorney that the said statement has been prepared and filed, and that upon a day to be named in said notice he will apply to the court or judge who tried the cause or made the decision, order or judgment complained of, at a place to be named in said notice, to settle and certify said statement of facts. Said notice shall be given within thirty days after the decision, order or judgment is made, and the day fixed for the settling and certifying of the statement shall be at least ten days, and not more than thirty days, after the day of service. The party upon whom such notice is served shall, within ten days thereafter, serve upon the opposite party a written notice, in which shall be stated whether or not the correctness of said statement of facts is contested; and, if contested, in what particular or particulars the said statement is deficient, incorrect or incomplete. Upon the day named in said notice the said parties, or their attorneys, may appear before the said court or judge, and it shall be the duty of said court or judge to settle between the parties what is the proper statement, and to certify the same. The settling of said statement may be adjourned to a later day by order of said court or judge. — 20 — Sec. 5. The certificate of the judge that said statement contains all the material facts in the cause or proceeding shall be sufficient. In causes of equitable cognizance, where the appeal is from the final judgment, the said statement of facts shall contain all the testimony on which the cause was tried below, together with any exceptions or objections taken to the reception or rejection of testimony. In cases at law the statement of facts need contain no more than ■was necessary or proper in a bill of exceptions.” The appellant insists that the statement first proposed substantially complied with the law; that it is only necessary to send up so much of the evidence and proceedings as is required for the presentment of the errors • alleged, and that any thing which has no bearing upon any of the errors claimed may be omitted therefrom; and we are disposed to agree with this contention. Although the judge is required to certify that the statement contains all the material facts in the cause or proceeding, this should be construed to mean only such facts as are material to the matters to be presented upon the appeal, and that the word “ material ” has reference to such matters only, and not to the issues tried below. That it was not intended that it should be necessary to send up all the evidence produced at the trial in every case appealed, is rendered evident by the concluding part of § 5, which provides that “ in cases at law the statement of facts need contain no more than was necessary or proper in a bill of exceptions.” The difficulty comes in determining what is necessary or material for the presentment and determination of errors alleged, as to how much or how little the proposed statement should contain; and here, of course, it is impossible to lay down any definite rule, as each case is governed by its own peculiar conditions and circumstances. Afew general observations can be made, however. It is contended that respondents have no means of knowing, at the time the proposed statement is filed, how many or what points the ap — 21 — pellant intends to present an error; that the motion for a new trial, being couched in the most general language, ordinarily covers every possible point without definitely indicating them; that many of these might be abandoned, and that such motion furnishes no guide in these particulars, and that the statement itself need not necessarily contain all the points intended to be urged as error upon which the evidence has a bearing; that respondents would be left largely in the dark as to what facts should be made to appear if only such facts as are material to the points to be urged as error are to be sent up ; and that, consequently, to insure a fair presentment of the case, all the testimony and evidence material to the issues tried should be contained in the statement. The motion for a new trial, where one is made, of course affords no guide herein. It is not the essential office or purpose of such a motion to present for re-argument before the same court questions which have once been disposed of at the trial, although the propriety of including such matters is unquestioned; nor can it serve to raise new questions over the proceedings had at the trial which could have been raised then but were not. It is true that the grounds of a motion for a new trial as specified in § 276 of the code may cover about everything; and it is usual to allege most of these grounds in the general language there used, this genera] statement having been rendered permissible by the act of the legislative assembly approved January 31,1888. Our attention has been called to code §§ 449 and 450, which are as follows: “ Sec. 449. A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court until such motion has been made and overruled. “ Sec. 450. The supreme court may review and reverse on appeal or writ of error any judgment or order of the district court, although no motion for a new trial was made in such court.” — 22 — Section 449 evidently relates to matters other than those which are grounds for a new trial, and which the party had no opportunity to otherwise raise, such as a mistake made in the rendition or entering of judgment, and it is not in conflict with § 450. From all of these, and from the reason of the thing, it seems that a motion for a new trial need only present such grounds therefor as arise or are ascertained subsequent to the trial, which the party had no opportunity to or could not raise during the trial. Every point relied upon as error here must have been called to the attention of the trial court in some manner and at the proper season; but, when once so presented, that is sufficient without a repetition. While the motion for a new trial would not necessarily indicate or control the points appellant might desire to present upon an appeal, and would be of little value in this particular as an aid in settling a statement, yet the proposed statement itself should furnish this information; it should contain every ¡joint made touching or depending upon the evidence. While it may be true that some question of fact might become matter of record during the pendency of the case before its final decision in the superior court, nevertheless such matter should be incorporated in the statement, if one is subsequently settled on appeal. It is not contemplated that the facts of the same case should in part be presented by bill of exceptions and partly by a statement of facts, although there is now practically little or no difference between them, except in the manner of the settlement. While the language of § 4, wherein it provides that “ any party feeling himself aggrieved may have any material factor facts not already a part of the record made so by a statement of facts,” would indicate that it would not be necessary to include such facts of record in the statement, but that they might come up in the nature of a — 23 — bill of exceptions and the other facts by the statement, yet, if so, this must yield in this particular to § 6, which is as follows: “Sec. 6. In actions at law and in special proceedings which are appealable, the appellant, instead of settling a statement of facts, as provided by this act, may have liis exceptions and such facts as are material to the same made a part of the record by bill of exceptions, as provided by chapter nineteen (19) of the Code of Washington, relating to ‘ exceptions.’ ” While either course may be adopted, it is evident by this section that, whichever one is adopted, it must be followed exclusively, although an exception taken as provided by chapter 19 of the code would not prevent the party having taken it from afterwards settling a statement of facts and making such exception a part thereof. The proposed statement should fairly advise a respondent of every question to be urged as error upon an appeal that is in any wise dependent upon the evidence; and in this way he is put upon his guard in the settlement thereof, and should make his objections and offer his amendments and additions accordingly; and the certificate that such statement contained all the material facts would be understood as applied to and limited to the questions presented by the statement, and none other dependent upon the facts would be considered. A party offering a statement is in duty bound to fairly present the facts bearing upon the points raised, and if, through any mistake or inadvertence, any fact material to any of such points should be omitted, he would in good faith be bound to insert it when called to his attention. Should a difference of opinion occur as to what the facts were, or as to what was material, this would be settled by the judge. A proposed statement might be so palpably defective as to show a willful or wanton violation of the law, and possibly amount to a contempt of court. In such — 24 — cases the judge might refuse to settle it. An appellant should not be permitted to file a mere excuse for a statement, and impose the burden of furnishing the material facts upon the opposite party. If there had been a bona fide attempt to present some of the points fairly it might be settled as to such- points, and where it was evident that no attempt had been made to comply with the law as to any other points, these might be ignored, in which case the certificate should show that the statement contained all the facts material to certain points, indicating them, and that the facts with regard to the other points were not sent up because no attempt had been made to supply them. But it is only in extreme cases, where an intentional failure to comply with the law is evident, or where there has been the grossest neglect, that either of these courses should be resorted to. In this case the motion to strike the statement settled should bedenied. The original statement proposed, which was filed in time, while it did not contain nearly all the testimony, was sufficient, or substantially so, to present the points, or most of them at least, thei’e raised. Quite likely, however, it should have contained additional testimony as to some of these points, but of no considerable amount. The proposed statement was not so faulty as to indicate gross neglect, or an intention to mislead the court or respondent, or to show an attempt to suppress some of the material facts. The respondent had an opportunity to offer this additional matter, and to have the same incorporated in the statement, with the consent of the appellant or by the direction of the court, if deemed material, in case of a disagreement between the parties. Instead of pursuing this course, the respondent procured what was claimed to be a full and complete statement of all the testimony and facts, which was a much more voluminous document than the original statement proposed by the appellant. It contains much that is cumulative and immaterial to any 0f — 25 — the question raised. Such statement was not procured by the respondent to be offered as a substitute, it seems, for the first statement proposed, but rather to show the defects therein, and to resist the settlement of any statement by reason thereof and of the lapse of time. The court settled the facts in accordance with the last statement, however, and made the points raised over the settlement a part thereof for our decision. The proposed statement was not sufficient to raise all the points which are presented by the statement settled, but it was the appellant’s option, of course, which points he would urge upon appeal of those raised below. The respondent contends that, had the first statement been adopted, the appellant might have successfully urged that the evidence was not sufficient to sustain the verdict, as no evidence upon some of the essential points was incorporated therein, and that for such reason also all the facts should come up; but such a question could not be raised in this court originally, and it does not appear to have been raised in the superior court, either by a motion to quash, or by a request for an instruction for a verdict upon any such ground. Had the question been raised in the superior court, if the controversy was over the effect of certain testimony or proof (and this might include all of it), as to whether it did tend to prove such fact or facts, then such testimony or evidence should be set forth in the statement, together with the point raised thereon. If all the proof was not contained therein the respondent could propose any additional matter which he should claim was material, but it would not always be necessary to incorporate all the testimony and proof in the statement — that which should be cumulative and that which would be immaterial — merely to show an absence of such proof. Of course, the statement might better be full than meager, but it is not a correct practice to burden the record with cumu — 26 — lativo and clearly immaterial matters tending in a greater or less degree to inconvenience tlie hearing here. The point was raised by a motion to set aside the verdict and for a new trial, that the-damages allowed were excessive ; that the evidence was not sufficient to warrant so large a recovery; and this was sought to be preserved in the first statement, but what has been said with regard to the testimony and proof to be sent up applies to this point also. Only material matters should be sent up, and as to these the statement should not be cumulative, as the court does not weigh the proof in actions at law. The respondent would be advised of any claim, either that the damages ■ were excessive or that there was no testimony to prove some point claimed to be necessary to support a recovery, by the proposed statement itself. The motion for a new trial should be incorporated in such statement, and there would be the information as to any point over the excessiveness of the damages, or of any other point properly raised therein and not elsewhere appearing. If the point as to the failure of proof was raised by a motion, that should be set forth in the statement, and the instructions given or refused, if any point is claimed over them, should also be set forth in the statement; and if such point was raised thereby it would likewise appear, and the respondent would be informed thereof, even though the statement proposed should contain no other direct allegation that the damages were excessive, or that there had been a failure to prove some necessary point, each of which, however, would be very proper allegations to make directly in the proposed statement where relied upon as error, and all the proof is not given. The motion is denied.