30 Wn.2d 62, INER FALK et al., Respondents, v. E. E. STIENBACK et al., Appellants
[No. 30206. Department Two. Supreme Court March 9, 1948.]
INER FALK et al., Respondents, v. E. E. STIENBACK et al.,
Appellants.«1»

In Loutsis v. Georges, 3 Wn. (2d) 1, 99 P. (2d) 413, an abbreviated statement of facts was stricken, because of appellant's failure to file a statement of points calling attention to the questions which he desired to raise on appeal. In the course of the opinion, we said:

"Where an appellant seeks to have only certain questions reviewed on appeal, as provided for in § 2, rule IX, supra [Rule of Supreme Court 9 (2)], and does not include in his statement of facts or bill of exceptions, as proposed and filed, the complete record and all the proceedings and evidence in the cause, the filing of a concise statement of the points on which he intends to rely on appeal is jurisdictional and mandatory."

In Apostle v. Lillions, 8 Wn. (2d) 118, 111 P. (2d) 789, it appeared that the appellants filed a statement of the points upon which they expected to rely on appeal, in accordance with the rule, but, on motion, the statement of facts was stricken as not containing all of the material facts, matters, and proceedings occurring in the cause, necessary for a

Mar. 1948] FALK v. STIENBACK. 71

determination of the points upon which appellants relied on their appeal. In the course of the opinion, we said:

"It is apparent from the certificate that the statement as filed does not contain all the material facts, matters, and proceedings occurring in the cause, necessary for a determination of the points on which appellants rely on their appeal."

The certificate of the trial court, attached to the statement of facts, stated that the same did not contain evidence bearing upon certain specified phases of the trial.

In Rosencrans v. Purrier, 15 Wn. (2d) 558, 131 P. (2d)442, the respondents moved to strike the statement of facts. It appeared that the appellant filed with the superior court a proposed statement of facts, within the period of ninety days after the entry of the judgment. The proposed statement, however, did not include all of the proceedings and evidence in the case, but merely a summary thereof, together with memorandum decisions oil the trial court. The appellant did not file, at the time of the filing of the proposed statement of facts or at any time within the ninetyday period, his statement of the points upon which he intended to rely on the appeal. He did file such a statement of points, with an amended proposed statement of facts five days after the ninety-day period had elapsed.

In the opinion, attention was called to the fact that the appellant's notice of appeal was directed both to the judgment entered on the verdict of the jury and to the order which the appellant sought to review on appeal to this court. While the court assumed, for the purposes of the opinion only, that the statement of facts, as amended after the expiration of the ninety-day period, was a proper statement of facts to be considered on appeal, the court, quoting from Loutsis v. Georges, supra, struck the statement of facts because of the failure of the defendant to file any statement of points to be relied upon on appeal, within the time limited by the rule. In the course of the opinion, we said:

"The only distinction between the Loutsis case and this one is that there the appellant at no time filed a statement of the points on which he intended to rely on the appeal,

72 FALK v. STIENBACK. [30 Wn. (2d)

while here he ultimately did file such a statement, but not with his first proposed statement of facts, nor within the ninety-day period. However, as stated in the Loutsis case, the rule is jurisdictional and mandatory. Not only must the proposed statement of facts be filed within the ninetyday period, but with his proposed statement of facts the appellant must also serve and file a concise statement of the points on which he intends to rely on the appeal. The jurisdictional mandate thus applies to the time element as well as to the factual content of the statement of points on which reliance is placed. Appellant did not comply with the rule, and for that reason the statement of facts must be stricken."

It was expressly held that the rule in question is jurisdictional and mandatory, both as to the time of filing and the contents of the statement of points relied upon.

In the case at bar, appellants, within the time limited by the rule, filed, with their proposed statement of facts, a statement of the points upon which they intended to rely on appeal. This statement, however, was couched in such broad terms as to embrace any matter which occurred during the trial, and in connection with which appellants might contend that the trial court had erred, to their prejudice. Appellants sought to limit their statement of points by an amended statement, filed after the filing of their proposed statement of facts, and after the expiration of the ninetyday period.

It would seem that, if a statement of points could be so amended by an appellant seeking to review before this court, upon an abbreviated statement of facts, only certain rulings of the trial court deemed erroneous, the filing of a statement of points would be of little benefit and would fall far short of accomplishing the evident purpose of the rule, as an appellant could file a statement of points embracing all possible errors in the entire record, and then, after the expiration of the ninety-day period, reduce it at pleasure.

[2] As stated in the cases of Loutsis v. Georges and Rosencrans v. Purrier, supra, the filing of a statement of points, as provided by the rule, is jurisdictional and mandatory, both as to the time element and to the factual

Mar. 1948] FALK v. STIENBACK. 73

content of the statement. The manifest purpose of the rule is to advise opposing counsel and the trial court as to the exact questions which the appellant is seeking to present to this court on appeal. The proposed statement of facts, which an appellant must file within a ninety-day period, should consist of so much of the record as the appellant, in the exercise of good faith, believes will serve as an adequate basis for the presentation of his appeal before this court. Counsel for other parties to the litigation are entitled to rely upon the statement of points, as initially filed, and the trial court should also, at that time, be fully advised as to the appellant's position with regard to the questions which the appellant proposes to present to this court on appeal.

While the precise question here presented has not been before this court in any case heretofore decided, the governing principles have been clearly enunciated in our decisions cited above.

The proposed statement of facts presents another question which should be noted. As above stated, appellants' motion to dismiss the action, based upon Rule of Practice 3, 18 Wn. (2d) 32-a, was first argued to a judge other than the judge who presided at the trial. The proposed statement of facts contains a statement of facts signed by this judge, certifying as to the matters presented to him when arguing this motion, and the transcript contains a copy of the order then entered, denying appellants' motion to dismiss the action. This order was interlocutory in its nature and was not subject to review by appeal.

The proposed statement of facts discloses that, after the jury had been duly impaneled and sworn to try the cause, and in the absence of the jury, appellants renewed their motion to dismiss the action for want of prosecution, pursuant to Rule of Practice 3. Counsel called attention to the fact that this motion had been previously made in the cause and was being renewed. The trial court then inquired whether or not appellants had appealed from the order signed by Judge Ronald, to which appellants' counsel answered in the negative. After argument of counsel for

74 FALK v. STIENBACK. [30 Wn. (2d)

both parties, which is not contained in the proposed stateof facts, the court stated: "I will not pass on the matter at all. Judge Ronald has ruled on it, and we will ahead with the trial of the case," to which statement appellants preserved an exception.

The trial court should have ruled on the motion. Its refusal to do so was, in effect, a denial of appellants' motion to dismiss. Appellants were entitled to rulings by the trial court upon all questions properly presented.

[3[ The denials of appellants' motions to dismiss, above referred to, constituted rulings which, upon a proper record, appellants might review before this court. All alleged trial errors, to which exceptions have been properly preserved, may be presented to this court for consideration, on appeal by an aggrieved party, if a proper and adequate record be here presented.

Judge Ronald's order of May 24, 1946, was interlocutory only, somewhat similar to the entry of an order overruling a demurrer to a complaint, and, had appellants elected to stand upon their motion and suffered a judgment against them, it could have been reviewed by this court on appeal from such judgment. It appearing that appellants did not follow this course, the order, standing alone, is not subject to review here.

[4] In this connection, it is appropriate to call attention to the fact that Rem. Rev. Stat., § 389 [P.P.C. § 47-17]et seq., apparently contemplate that a statement of facts shall be signed by ". . . the judge of the court before whom the cause is pending or was tried, . . ." (Rem. Rev. Stat., § 389), with the exceptions stated by Rem. Rev. Stat., § 392 [P.P.C. § 47-23], providing for the certification of a statement of facts if the judge before whom the cause was pending or tried shall have ceased to occupy his judicial office, or because of disability may be unable to certify the statement of facts. A question concerning statements of facts certified by different judges was considered by this court in the case of Hill v. Young, 7 Wash. 33, 34 Pac. 144.

As the statement of facts certified by Judge Ronald cannot be considered by this court, independently of a

Mar. 1948] FALK v. STIENBACK. 75

sufficient statement of facts certified by the judge who tried the cause, we merely call attention to the statutes governing the preparation and certification of a statement of facts or bill of exceptions.

[5, 6] For the reasons above stated, the proposed statement of facts was utterly inadequate to meet the requirements of appellants' statement of points filed therewith, and as, pursuant to the authorities above cited, we hold that a statement of points filed by an appellant desiring to raise only designated questions on appeal to this court, and filed with the proposed statement of facts, is not subject to amendment after the expiration of the ninety-day period, the statement of facts in the case at bar is inadequate and ineffective, and is stricken from the record.

[7] Appellants' motion for dismissal of the action for want of prosecution states that it is based upon the records, files, and proceedings in the cause, and "upon the subjoined affidavit of George S. Cook," one of appellants' counsel. The transcript contains two affidavits, evidently filed in connection with this motion, one by a former counsel for appellants, who represented them during the years 1940 and 1941, and another by one of respondents' counsel. The order denying the motion states, inter alia, ". . . the court having heard and considered the affidavits in support of and against said motion and the arguments of counsel, . . ." followed by denial of the motion. As the order does not describe or identify the affidavits which were presented to the court, the affidavits disclosed by the transcript may not be considered because, in the absence of a statement of facts, there is no record before us definitely identifying the affidavits which were presented to and upon which the trial court based its ruling. While the affidavit filed together with, and referred to in, appellants' motion to dismiss may be considered, it appears that the court considered other affidavits, which, as above stated, are not adequately identified in the record. Keyes v. Ahrenstedt, 156 Wash. 526, 287 Pac. 35; Rosencrans v. Purrier, supra; Whittaker v. Weller, 21 Wn. (2d) 716, 152 P. (2d) 957, 155 P. (2d) 284.

76 STATE v. McDANIELS [30 Wn. (2d)

[8] The statement of facts having been stricken, there remains before us, upon the appeal, no question which we can consider. Froom v. Froom, 21 Wn. (2d) 418, 151 P. (2d) 66.

The judgment appealed from is, accordingly, affirmed.

MALLERY, C. J., STEINERT, ROBINSON, and JEFFERS, JJ., concur.

30 Wn.2d 62, INER FALK et al., Respondents, v. E. E. STIENBACK et al., Appellants[No. 30206. Department Two. Supreme Court March 9, 1948.]INER FALK et al., Respondents, v. E. E. STIENBACK et al., Appellants.«1»

30 Wn.2d 62, INER FALK et al., Respondents, v. E. E. STIENBACK et al., Appellants
[No. 30206. Department Two. Supreme Court March 9, 1948.]
INER FALK et al., Respondents, v. E. E. STIENBACK et al.,
Appellants.«1»