(dissenting)—I am unable to concur in the foregoing opinion. In my judgment, it places an unnecessary and an unwarranted construction upon the statute relating to abstracts on appeal. It holds the statute mandatory, and in a sense jurisdictional. This means that any material deviation by an appellant from its prescribed terms will work a denial of his right to have his cause heard in this court upon its merits. Since practitioners are prone to err in matters of practice, it requires no prescience to foretell that, if this construction is to be adhered to, the statute will prove a fruitful source for the dismissal of appeals.
I agree with much that is said concerning the purposes of the statute, but I cannot agree with the conclusion that “we can only enforce the statute so as to meet its plain purpose by holding the service of the abstract before or at the time of the service of the opening brief a mandatory step in the prosecution of an appeal which we have no power either to waive or excuse.” In the first place, the statute does not so *11require, and in the second place it is not, in my opinion, either mandatory or jurisdictional. It is a practice act, an act regulating the procedure after jurisdiction has been acquired, and should be construed as an act to facilitate the hearing of the appeal upon its merits, not as a means of denying the right to such a hearing. I am aware that it is said that the words of the act are mandatory in form. But I think this not conclusive, even if the words bear that construction. A statute so worded may be given a directory meaning when its evident purpose and intent so requires. But this statute contains evidence in itself that it was intended to be directory, rather than mandatory. It contains a section not noticed by the majority. This section provides that nothing in this act contained shall alter in any respect the existing manner of settling and certifying bills of exceptions and statements of fact, and that such bills and statements shall be transferred to this court to be referred to in any controversy concerning the accuracy of the abstract, as well as for reference to exhibits, “and for such other uses as the supreme court may find proper in consideration of all matters on appeal.” This last clause, in my judgment, permits this court to consider appeals upon their merits, if it so desires, regardless of the fact whether or not an abstract has been filed or served. This being true, it follows, as of course, that no mandatory or jurisdictional requirement of the statute is violated by failing to file and serve an abstract within the time prescribed therein.
The question is, in my opinion, one of expediency: Will the court, because of a violation of a rule of practice, deny to a litigant the right to be heard upon the merits of his appeal? Looking at the question in this light, it seems to me that the court ought to hesitate long before it adopts a rule so harsh and extreme. It is contrary to the spirit of the practice acts. For the past one hundred years, legislation has been directed towards abolishing technicalities in court procedure, *12and to the securing of the hearing of causes upon their merits. Our own code furnishes abundant examples of this fact. By it, all common law forms are abolished and, in lieu thereof, it is enacted that every pleading shall contain a plain and concise statement of the facts constituting the cause of action or the grounds of defense. An entire chapter therein is devoted to the mistakes and amendments. The court is required, in every stage of an action, to disregard any error or defect that does not affect the substantial rights of the adverse party. Even judgments may be relieved against when entered through mistake, inadvertence, surprise or excusable neglect. .And the legislature has not confined its admonitions altogether to courts of the first instance. This court, in the statute relating to appeals, has been admonished to allow all amendments in matters of form, curative of defects in the proceedings, to the end that substantial justice be secured to the parties, and has been directed not to dismiss an appeal for defects and mistakes not jurisdictional, if the appellant shall, upon order of the court, perfect the appeal.
Again, it is said that the rule adopted by the majority is no more harsh than the rule adopted by this court with reference to the statute relating to the filing and serving of statements of facts. But I think this rule not sound, and that it should not be followed in a case to which it is strictly applicable, much less in a case where it is only analogously so. The rule referred to was first announced in Erickson v. Erickson, 11 Wash. 76, 39 Pac. 241. It was there held, under a statute which merely provided that a proposed statement of fact should be filed and served, that a statement must be stricken if it was served before filing. With all due respect to the judges pronouncing that decision, and to my prior and present associates who have adhered to it, I cannot think the rule has any foundation in reason. Manifestly, the order in which the acts were named in the statute was an accidental circumstance. The purpose was to require both the filing and serving of the proposed statement, and I ven*13ture to assert that it was never dreamed by the draughtsman of the act or the legislators who voted for its passage that the order in which the acts were to be performed was material. The precedents cited from other jurisdictions I shall not comment upon further than to say that I do not find that the liberal rules enjoined by our code prevail in such jurisdictions.
As appears in the majority opinion, the appellant in the case at bar supplied the abstract before the cause was called for hearing. This, in my judgment, evidenced his good faith and should prevent a dismissal of his appeal for want of an abstract. If the briefs do not properly refer to the abstract, and this is a material defect, opportunity should be given for a correction of the briefs. This, it is true, would cause some delay, but time is not the principal consideration in the hearing of an appealed cause. A more important consideration is that the cause be heard upon its merits, and to this end the rules of practice should be directed.
The motion to dismiss should be denied.