5 Wn.2d 661, G. F. McKASSON et al., Respondents, v. F. H. HUNTWORTH et al., Appellants

[No. 28044. En Banc.      Supreme Court      October 17, 1940.]

G. F. McKASSON et al., Respondents, v. F. H.
                     HUNTWORTH et al., Appellants.1

[1] APPEAL AND ERROR - RECORD - STATEMENT OF FACTS - TIME FOR FILING. The filing of a proposed statement of facts within the ninety day period is jurisdictional; and if not so filed it will be stricken and the judgment affirmed if the errors assigned depend upon the evidence.

Appeal from a judgment of the superior court for King county, Findley, J., entered February 10, 1940, in favor of the plaintiffs, in an action for equitable relief, tried to the court. Affirmed.

Robert G. Cauthorn and F. H. Huntworth, for appellants.

Evert Arnold and Arthur T. Wendells, for respondents.

SIMPSON, J. -

Plaintiffs brought this action to determine their ownership in a strip of land upon which their predecessor in interest and the adjoining land owners, defendants in this case had placed a portion of a concrete driveway. The case was tried to the court and a decree entered permanently enjoining defendants from using that portion of the driveway located upon plaintiffs' property. Defendants appealed.

The assignments of error are that the court erred in not giving appellants judgment at the close of plaintiffs' case, and that the decision is contrary to the law and against the evidence.

The decree was signed by the trial judge and filed in the office of the county clerk February 10, 1940. The statement of facts was filed in the clerk's office May 20, 1940, more than ninety days after the entry of the final


1 Reported in 105 P. (2d) 44.

[1] See 3 Am. Jur. 236.

 662    McKASSON v. HUNTWORTH.
           Opinion Per SIMPSON, J. [5 Wn. (2d)

judgment. The statement of facts was not filed within the period of time allowed by Rule IX, Rules of the Supreme Court, 193 Wash. 9-a, in effect August 1, 1938.

[1] The filing of a statement of facts within the time provided by the rule is jurisdictional. Nudd v. Seattle, 188 Wash. 273, 62 P. (2d) 43; Louring v. Louring, 199 Wash. 351, 91 P. (2d) 729. In compliance with the rule and in accordance with our former decisions, we are compelled to strike the statement of facts.

It is clearly apparent that the error urged by appellants cannot be considered without recourse to the evidence in the case. Inasmuch as we do not have the evidence before us, we affirm the judgment.

ALL CONCUR.