Northern Pacific & Puget Sound Shore Railroad v. Coleman

The opinion of the court was delivered by Scott, J. The respondents move to dismiss the appeal in this case, because the judge who tried the cause settled the statement of facts after he had gone out of office. We have heretofore decided, in the case of Faulconer v. Warner, 2 Wash. 525 (27 Pac. Rep. 274), that an ex-judge has no authority to settle the statement of facts, and we granted a motion to strike the statement in that case, for that reason. Here the respondents have not asked to have the statement stricken, but to have the appeal dismissed. It, of itself, affords no ground for dismissing the appeal and cannot affect the right of appellant to have the remainder of the record here, and to argue upon the merits any question which it may present. True, the striking of a statement may leave no question in the record for the court to consider, and after a statement is stricken, if the respondent should move to dismiss the appeal upon that ground, and said motion should be well founded in fact, it would be granted; otherwise, if no such motion was made by either party, the judgment would be affirmed, as was done in the case above cited. It is argued that there is no question presented by the record in this case outside of the state [230] ment, and that as, after striking the statement, the motion to dismiss would be a matter of form; the motion here made should be treated as a motion to strike. The appellant, however, disputes the proposition that there would be no matter left in the record for the court to pass upon, should the statement be stricken. Now the question is, will the court, in advance of a decision of this motion, look into the record to determine this matter, and if it is found that no question would be left, then grant the motion to dismiss, or ought the court to treat the motion to dismiss the appeal as a motion to strike the statement? It is claimed that under the code practice only matters of substance are looked at; that it is a part of its policy to favor liberal constructions, and that in this case the real objection is presented by the motion to dismiss, and the respondents are at most only mistaken as to the judgment to which they are entitled; that it is an attempt upon the part of respondents in good faith to avail themselves of a legal right, and that they should not be held literally to the language of the motion. But there is a distinction to be recognized between those rights expressly conferred by direct legislative enactment, where the intention to confer is thus apparent, and those wherein the right is more in the nature of an advantage a party may take by reason of some defect in the law or oversight in legislation such as the present one, and it seems to hs that this is not a case where the rule as to liberal construction can be invoked. Such a rule should only operate in furtherance ofjustice,in which case the law looks tolerantly on mistakes, and undertakes to give effect to the manifest intendment. Here the moving party is seeking to prevent a hearing upon the merits by undertaking to avail himself of an irregularity in the proceedings not going to the jurisdiction, and one which did not arise by reason of any negligence of the other party. Brewer, J., in [231] Foreman v. Carten, 9 Kan. 682, upon the question of an amendment asked, says: “It is enough to state this here, as applicable generally: That if ever a party has obtained through legal proceedings an unjust advantage, and inj those proceedings has made a mistake, be it ever so trivial, the law will not tolerate an amendment to secure him in his advantage. To such an one the law is a Procrustean bed, and to its exact requirements every proceeding must, at his peril, conform.” And the same rule would apply to the case of this motion. The question of construction does not enter into the matter at all. The motion is not ambiguous. It asks that the case be dismissed, and to this the party is not entitled in an action at law upon the premises he has stated. Under the circumstances, it should not be treated as amended, and no intendment should be taken in its favor, nor will we look into the record to see what would be the effect upon the case if the statement should be stricken. It is the simple question of granting or denying this motion to dismiss which we have before us at this time. It is denied, and the cause allowed to proceed upon the merits. Hoyt and Stiles, JJ., concur.