The opinion of the court was delivered by
The first point to be considered in this case arises upon a motion made by respondent to have the statement of facts stricken from the record. Judgment was rendered in the cause on the 14th day of July, 1890. On the 21st day of said month appellants filed a purported statement of the facts in the case, for the purpose of having the same settled accordingly, which statement, the respondent claims, totally failed to comply with the provisions relating thereto in the appeal act, approved March 22,1890, under which this appeal was taken. The respondent objected to the statement offered, and it seems he caused to be prepared a full and complete statement of the facts in the case, which was filed on the 29th day of November, 1890, and was the one adopted and settled by the trial judge. The respondent obj ected to the settlement of any statement,because the time therefor had lapsed, no proposed statement which substantially complied with the law having been filed within the time prescribed, the statement which was offered within the
“Sec. 4. In all cases and proceedings in which an appeal lies to the supreme court, any party feeling himself aggrieved may have any material fact or facts, not already a part of the record, made so by a statement of facts. Such facts shall be settled and agreed on in the following manner: The party desiring to settle a statement of facts shall prepare and file with the clerk of the superior court a statement of facts, complete and ready for signing, and shall, within thirty days after the decision, order or judgment to be appealed from was made or rendered, give notice to the opposite party or his attorney that the said statement has been prepared and filed, and that upon a day to be named in said notice he will apply to the court or judge who tried the cause or made the decision, order or judgment complained of, at a place to be named in said notice, to settle and certify said statement of facts. Said notice shall be given within thirty days after the decision, order or judgment is made, and the day fixed for the settling and certifying of the statement shall be at least ten days, and not more than thirty days, after the day of service. The party upon whom such notice is served shall, within ten days thereafter, serve upon the opposite party a written notice, in which shall be stated whether or not the correctness of said statement of facts is contested; and, if contested, in what particular or particulars the said statement is deficient, incorrect or incomplete. Upon the day named in said notice the said parties, or their attorneys, may appear before the said court or judge, and it shall be the duty of said court or judge to settle between the parties what is the proper statement, and to certify the same. The settling of said statement may be adjourned to a later day by order of said court or judge.
Page 20Sec. 5. The certificate of the judge that said statement contains all the material facts in the cause or proceeding shall be sufficient. In causes of equitable cognizance, where the appeal is from the final judgment, the said statement of facts shall contain all the testimony on which the cause was tried below, together with any exceptions or objections taken to the reception or rejection of testimony. In cases at law the statement of facts need contain no more than ■was necessary or proper in a bill of exceptions.”
The appellant insists that the statement first proposed substantially complied with the law; that it is only necessary to send up so much of the evidence and proceedings as is required for the presentment of the errors • alleged, and that any thing which has no bearing upon any of the errors claimed may be omitted therefrom; and we are disposed to agree with this contention. Although the judge is required to certify that the statement contains all the material facts in the cause or proceeding, this should be construed to mean only such facts as are material to the matters to be presented upon the appeal, and that the word “ material ” has reference to such matters only, and not to the issues tried below. That it was not intended that it should be necessary to send up all the evidence produced at the trial in every case appealed, is rendered evident by the concluding part of § 5, which provides that “ in cases at law the statement of facts need contain no more than was necessary or proper in a bill of exceptions.” The difficulty comes in determining what is necessary or material for the presentment and determination of errors alleged, as to how much or how little the proposed statement should contain; and here, of course, it is impossible to lay down any definite rule, as each case is governed by its own peculiar conditions and circumstances. Afew general observations can be made, however. It is contended that respondents have no means of knowing, at the time the proposed statement is filed, how many or what points the ap
“ Sec. 449. A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court until such motion has been made and overruled.
“ Sec. 450. The supreme court may review and reverse on appeal or writ of error any judgment or order of the district court, although no motion for a new trial was made in such court.”
“Sec. 6. In actions at law and in special proceedings which are appealable, the appellant, instead of settling a statement of facts, as provided by this act, may have liis exceptions and such facts as are material to the same made a part of the record by bill of exceptions, as provided by chapter nineteen (19) of the Code of Washington, relating to ‘ exceptions.’ ”
While either course may be adopted, it is evident by this section that, whichever one is adopted, it must be followed exclusively, although an exception taken as provided by chapter 19 of the code would not prevent the party having taken it from afterwards settling a statement of facts and making such exception a part thereof. The proposed statement should fairly advise a respondent of every question to be urged as error upon an appeal that is in any wise dependent upon the evidence; and in this way he is put upon his guard in the settlement thereof, and should make his objections and offer his amendments and additions accordingly; and the certificate that such statement contained all the material facts would be understood as applied to and limited to the questions presented by the statement, and none other dependent upon the facts would be considered.
A party offering a statement is in duty bound to fairly present the facts bearing upon the points raised, and if, through any mistake or inadvertence, any fact material to any of such points should be omitted, he would in good faith be bound to insert it when called to his attention. Should a difference of opinion occur as to what the facts were, or as to what was material, this would be settled by the judge. A proposed statement might be so palpably defective as to show a willful or wanton violation of the law, and possibly amount to a contempt of court. In such
The point was raised by a motion to set aside the verdict and for a new trial, that the-damages allowed were excessive ; that the evidence was not sufficient to warrant so large a recovery; and this was sought to be preserved in the first statement, but what has been said with regard to the testimony and proof to be sent up applies to this point also. Only material matters should be sent up, and as to these the statement should not be cumulative, as the court does not weigh the proof in actions at law. The respondent would be advised of any claim, either that the damages ■ were excessive or that there was no testimony to prove some point claimed to be necessary to support a recovery, by the proposed statement itself. The motion for a new trial should be incorporated in such statement, and there would be the information as to any point over the excessiveness of the damages, or of any other point properly raised therein and not elsewhere appearing. If the point as to the failure of proof was raised by a motion, that should be set forth in the statement, and the instructions given or refused, if any point is claimed over them, should also be set forth in the statement; and if such point was raised thereby it would likewise appear, and the respondent would be informed thereof, even though the statement proposed should contain no other direct allegation that the damages were excessive, or that there had been a failure to prove some necessary point, each of which, however, would be very proper allegations to make directly in the proposed statement where relied upon as error, and all the proof is not given.
The motion is denied.