[No. 33390. Dept. Two. Supreme Court August 11, 1955.]
STEPHANIE L. SWEENEY, Appellant, v. CLARANCE SWEENEY,
Respondent.«1»
[1] APPEAL AND ERROR - STATEMENT OF FACTS - NECESSITY - MATTERS APPARENT OF RECORD. A statement of facts is required only when necessary to consider the question presented; and, since a statement of facts is not necessary to enable the supreme court to consider the question of whether the findings of fact support the judgment, it follows that, in a case where such question is presented, failure to serve and file a proposed statement of facts is not ground for dismissal of the appeal.
[2] SAME - RECORD - CONCISE STATEMENT OF POINTS - WHEN NECESSARY. Under Rule on Appeal 34, a concise statement of points must be served and filed with the proposed statement of facts in those cases in which an appellant desires to appeal on a short record; hence, it is contemplated that a concise statement of points will be filed only in those cases where a statement of facts is required.
[3] SAME. Since a statement of facts is not required to decide the question of whether the findings of fact support the judgment, the appeal in such a case is not on a short record and no concise statement of points should have been filed, and it will be regarded as surplusage.
Motion filed in the supreme court July 21, 1955, to dismiss an appeal. Denied.
Rummens, Griffin, Short & Cressman and Hulbert S. Murray, for appellant.
Wettrick, Flood, O'Brien, Toulouse & Lirhus, for respondent.
«1» Reported in 286 P. (2d) 719.
[3] See 106 A. L. R. 467; 3 Am. Jur. 209.
170 SWEENEY v. SWEENEY. [47 Wn. (2d)
PER CURIAM. -
Respondent has moved to dismiss this appeal on the ground that appellant is appealing on a short record and has not filed a concise statement of points within the time required by the rules of this court.
The judgment appealed from was filed on April 8, 1955. No proposed statement of facts was served or filed. On the ninety-first day after the entry of such judgment, appellant filed a concise statement of points. This statement has not been served upon respondent or his attorney.
Appellant states that the filing of a concise statement of points was ill-advised on her part; that she does not intend to appeal on a short record, and desires only to present for review the questions of whether the findings of fact support the conclusions of law, and whether the findings and conclusions support the judgment. She asks us to disregard the concise statement of points as surplusage.
[1] A statement of facts is required only when necessary to consider the questions presented. Rule on Appeal 32, 34A Wn. (2d) 32, as amended, effective March 1, 1954. A statement of facts is not necessary to enable this court to consider the question of whether the findings of fact support the judgment. Jordan v. DiRae, 42 Wn. (2d) 934, 257 P. (2d)773. This question is presented in the case before us. It follows that failure to serve and file a proposed statement of facts is not ground for dismissal of the appeal.
[2] A concise statement of points must be served and filed with the proposed statement of facts in those cases in which an appellant desires to appeal on a short record. Rule on Appeal 34, 34A Wn. (2d) 36. Palin v. General Constr. Co., 45 Wn. (2d) 721, 277 P. (2d) 703. It is thus contemplated that a concise statement of points will be filed only in those cases where a statement of facts is required.
[3] As before indicated, a statement of facts is not required to decide the questions appellant presents on this appeal. Accordingly, this is not an appeal on a short record, and no concise statement of points should have been filed. It will be regarded as surplusage.
Respondent will have notice of the questions presented when he examines the assignments of error set out in
Aug. 1955] NIELSEN v. NORTHERN EQUITY CORP. 171
appellant's brief. If any such assignments raise questions which cannot be decided without considering the trial court proceedings, such questions will not be decided on this appeal.
The motion is denied.