O'Donnell v. McCool

Ellis, J. — Respondent has moved to dismiss this appeal for the reason that the exhibits introduced in evidence at the trial are not incorporated in, nor attached to, the statement of facts, nor on file in this court. It appears from the certificate of the trial judge that these exhibits were ordered to be attached to the statement of facts and are certified to constitute a part of it. It also appears by affidavit of' one of the attorneys for the appellants, that the original exhibits have been lost or mislaid in the clerk’s office of the superior court of Stevens county, that diligent search for them has been made, but that they cannot be found. This affidavit, which is not controverted, fully exonerates the appellants and their attorneys from blame for the loss of these exhibits, and it is [453] not claimed that there is any blame in that regard attaching to the respondent or to her attorneys. Upon the discovery, shortly before the time set for hearing in this court, that the exhibits were not attached and could not be found, the appellants applied to Honorable E. H. Sullivan, judge of the superior court for Spokane, who sat in the trial as visiting judge for Stevens county, to certify and order attached to the statement of facts as copies of the original exhibits copies supplied by the appellants, or to set a time for a hearing upon that application. Thereupon, the court entered an order as follows: “Now on this 27th day of June, 1914, this matter coming on to be heard in open court before the Hon. E. H. Sullivan, the judge before whom the above cause was tried while sitting at Colville, as Judge pro tern, of the superior court of the state of Washington in and for Stevens county, Washington, and Everett J. Smith appearing for appellants, and Peacock & Ludden, Esqs. of counsel, appearing for respondents, appellants respectfully moved the court to certify the attached files as copies of original exhibits heretofore admitted in evidence in the above cause upon the trial thereof, or to set a time for further hearing, and appellants having submitted the affidavits and stipulations hereto attached in support of said motion, thereupon counsel for respondent refusing either to agree that this court might certify said copies of said exhibits, or to permit further hearing of the same, the court not being sufficiently advised declines to take any action in the premises.” This being an action in equity, triable here de novo, it is manifest that we cannot entertain the appeal without all of the evidence, including the exhibits. It is equally manifest that a grave injustice would result from a dismissal of the appeal where no fault attaches to the appellants or their attorneys. While there is no statute expressly meeting such a case, we think that the trial court has the inherent power, under the circumstances of this case, to supply the exhibits if it can be done, and to order a hearing upon notice to all parties [454] concerned, to the end that it may be determined whether or not the copies offered are in fact copies of the original exhibits or contain their material substance. It is, therefore, ordered that the clerk of this court transmit to the trial judge, Honorable E. H. Sullivan, the papers on file in this cause purporting to be copies of the original exhibits, together with the affidavits in support thereof, and that the trial judge, upon receipt of such papers and upon due notice to the attorneys for all parties to this action, proceed to a full hearing, taking whatever evidence he may deem necessary, and determining whether or not these copies are true copies of, or contain the full material substance of all the exhibits admitted in evidence, make a finding upon such hearing, and certify the result to this court. The motion to dismiss the appeal is denied. Cuow, C. J., Gose, Main, and Chadwick, JJ., concur.