11 Wn.2d 165, PETER MARTELL, Appellant, v. THE CITY OF RAYMOND, Respondent

[No. 28510. Department One.      Supreme Court      November 6, 1941.]

PETER MARTELL, Appellant, v. THE CITY OF RAYMOND,
                          Respondent.1

[1] APPEAL AND ERROR - RECORD - STATEMENT OF FACTS - TIME FOR FILING. A statement of facts filed ninety-eight days subsequent to the entry of the judgment will be stricken.

Appeal from a judgment of the superior court for Pacific county, Phillips, J., entered March 21, 1941, upon granting a motion for nonsuit at the close of plaintiff's case, dismissing an action for wages. Affirmed.

Fred M. Bond, for appellant

John J. Langenbach (Emil S. Bitar, of counsel), for respondent.

MILLARD, J. -

This action was instituted to recover against defendant municipal corporation for overtime services as a bridge tender alleged to have been performed by plaintiff, under a contract with defendant. At close of plaintiff's case, the jury was discharged and defendant's motion for nonsuit was granted. Plaintiff's motion for new trial was denied, and judgment dismissing the action was entered. Plaintiff appealed.

The assignment that the trial court erred in granting motion for nonsuit and dismissing the action is subject to the handicap - although not suggested by respondent of the absence of the statement of facts.

[1] A statement of facts, filed subsequent to ninety days from the entry of the judgment or order from which an appeal is taken, must be stricken because not timely filed Rule IX, Rules of the Supreme Court, 193 Wash. 9-a; Tremblay v. Nichols, 187 Wash. 109, 59 P. (2d)1123.


1 Reported in 118 P. (2d) 950.

[1] See 3 Am.Jur. 274.

 166    MARTELL v. RAYMOND.
                Opinion Per MILLARD, J.

On March 19, 1941, the court signed "Order & Judgment" reading as follows:

"Upon due trial, the plaintiff having submitted his evidence and proofs, and the defendant having moved the dismissal of the action because the plaintiff failed to establish any right to recover, and the court having sustained the motion withdrawing the case from the jury, and the motion for new trial having been denied,

"IT IS ORDERED that the plaintiff's action, and each cause of action be, and is hereby dismissed with prejudice and that the defendant recover of the plaintiff its costs to be taxed."

The foregoing was filed of record March 21, 1941, in Journal Vol. 34, page 167, records of clerk of the superior court for Pacific county, and notice of appeal therefrom was duly given. On June 27, 1941, ninety-eight days subsequent to the entry of the above-quoted order and judgment, the statement of facts was served and filed.

The question whether the court erred in granting the nonsuit and dismissing the action can not be determined without reference to the evidence, which can not be considered as part of the record of the cause inasmuch as the statement of facts must be stricken because not timely filed.

It follows that the judgment must be, and it is, affirmed.

ROBINSON, C. J., MAIN, STEINERT, and DRIVER, JJ., concur.