Ingersoll v. Cudihee

Main, J. — The controversy in this case is over the ownership of an automobile, upon which an execution had been levied by the sheriff of King county as the property of a judgment debtor. Under the third party claim statute, Rem. Code, §§ 573-577, the plaintiff filed an affidavit and bond claiming ownership of the property. The defendants are the sheriff and the plaintiff in the action out of which the execution issued. The cause was tried to the court and a jury, and resulted in a verdict adverse to the plaintiff’s claim. From the judgment entered upon the verdict, the appeal is prosecuted. The respondents move that the statement of facts be stricken because the certificate thereto is insufficient. The certificate recites that the matters and proceedings embodied in the statement of facts are “a portion of the matters and proceedings occurring in said cause;” that the statement contains “a portion of the material facts, matters and proceedings heretofore occurring in said cause;” and that “the [516] foregoing statement of facts contains a portion of the evidence and testimony introduced upon the trial of said cause.” The certificate neither recites that the statement of facts contains all the facts, matters and proceedings occurring in the cause and not already a part of the record, nor that it contains all the facts upon any particular phase of the case. Under the holding of this court in Taylor v. Andres, 83 Wash. 684, 145 Pac. 991, this certificate is not sufficient; and upon the authority of that case, the motion to strike the statement of facts must be granted. The presumption is in favor of the correctness of the judgment, and in the absence of a statement of facts, the record presents no question upon the merits for review. The judgment will be affirmed1. Ellis, C. J., Chadwick, Moréis, and Webster, JJ., concur.