Caughey v. Rien

Per Curiam. In this case respondents have interposed a motion to strike the statement of facts, and to affirm [297] the judgment of the lower court, on the ground that the said statement is not certified as by law required, and does not enable this court to ascertain what evidence is proper to be considered on this appeal. From the record it appears that the appellants filed and served a proposed statement of facts in due time, and that, upon objections being made thereto, the trial judge refused to settle and certify the same as proposed. Thereupon, appellants, by permission of the court, submitted amendments to said proposed statement. To this, respondents objected, and moved to strike the: statement, which motion appears to have been granted; but, finally, the' trial judge signed a certificate, wherein he certifies that the statement of facts, as it comes here, “contains all the materials, facts, matters and proceedings heretofore occurring in said cause, and not already a part of the record therein, except the objections made by the defendants to the interrogatories contained in the depositions hereto annexed, and the rulings of the court in passing upon, said objections, and in passing upon the objections made to said interrogatories at the time they were propounded to the witnesses during the talcing of said depositions It will thus be observed that the character of this certificate- makes it impossible for this court to ascertain how much of the depositions in question can properly be considered on this appeal. This being an equity case where the findings are excepted to-, it is necessary for all of the evidence to be- here in order that the case may be tried de novo; and we are authorized to thus try the case only upon the competent evidence before us. From this record we- cannot tell how many of the questions in the depositions were objected to. Where an objectionable question is answered without any objection being interposed, it is, ordinarily, the rule that the objection which might have been urged is thereby waived,' and the answer to such [298] question becomes competent evidence, which must be considered by the court. On the other hand, where an objectionable question is propounded and the opposing party interposes a timely and proper objection, the answer given to such a question, although reduced to writing and returned by the person taking the deposition, does not become competent evidence, and cannot be considered by the court, unless such objection be withdrawn or waived on the trial. Hence, the absolute necessity of knowing what objections were made, upon the trial, to the questions that had been submitted to witnesses, when their depositions were taken prior to the trial, becomes perfectly plain. The record and statement of facts show that much testimony of numerous witnesses was taken upon depositions, wherein interrogatories were propounded, and the answers received and returned, regardless, of objections at the time interposed by defendants. As the record does not disclose what was done with these objections at the time of trial, and does not reveal what other objections were made, or what disposition was made of them, we are unable to segregate the competent from the incompetent evidence — we are unable to ascertain what evidence in this record we are authorized by law to examine. This being true, it is, of course, apparent that we are in no position to determine whether or not tire findings and conclusions of the trial court were erroneous, inasmuch as we have no legal basis on which to determine what were the established facts. This court has repeatedly held that it cannot review an equity case, where exceptions are taken to the findings, without having before it all of the evidence upon which the case was tried in the lower court. Stenger v. Roeder, 3 Wash. 412, 28 Pac. 748, 29 Pac. 211; Wheeler v Lager, 3 Wash. 732, 29 Pac. 453; Cadwell v. First Nat. Bank, 3 Wash. 188, 28 Pac. 365; Bartlett v. Reichenecker, 6 [299] Wash. 168, 32 Pac. 1062; Demaris v. Barker, 33 Wash. 200, 14 Pac. 362. The motion to strike the statement of facts must prevail; and, as no attack is made upon the sufficiency of the answers,- the judgment and decree of the lower court must he affirmed, and it is so ordered.