Livermore v. Northwest Airlines, Inc. , 6 Wash. 2d 1 ( 1940 )

It is prerequisite to the validity of a statement of facts (it is a condition precedent to review by this court of any claim of error predicated thereon), whether same is an implied or "agreed" statement under the statute (Rem. Rev. Stat., § 389 [P.C. § 7817]), or is one to which the parties agreed in writing or by stipulation in open court, that the trial judge certify (Rem. Rev. Stat., § 391 [P.C. § 7819]) that the matters and proceedings embodied in the statement are matters and proceedings occurring in the cause and that the same are to be made a part of the record therein; and, when such is the fact, he shall further certify that the statement of facts contains all the material facts, etc., occurring in the cause, or, as the case may be, such thereof as the parties have agreed to be all that are material therein. "The judge may correct or supplement his certificate according to the fact, at any time before an appeal is heard."

"Even though the appeal be presented upon an agreed statement of facts, it is necessary that it be properly certified by the trial court." State v. Baxter, 78 Wn. 405, 139 P. 196.

It will hardly be contended that a trial court could not validate by certificate, under Rem. Rev. Stat., § 391, an agreed statement of facts as a statement containing "all the material facts," etc., even if the court knew that the statement did not contain all the material facts. If the parties stipulate that the statement contains all the material facts, "such is the fact" which the court is required to certify.

Any language, or inference therefrom, in any opinion of this court to the effect that a trial judge may, if he knows that such is not the fact, refuse to certify, as containing all the material facts, etc., a statement of facts to which no amendments have been proposed within the prescribed period, is contrary to the clearly expressed intent of the legislature.

The parties may stipulate or agree that the statement of facts contains all the material facts. The trial court may not certify otherwise. The legislature has provided that, under certain circumstances, a statement will become an agreed statement of facts for the parties; that is, an "agreed statement" which contains, because of those circumstances, as does a stipulated statement, all the material facts, etc.; that "such is the fact" the court must certify.

Within ten days after service of the proposed statement of facts on the adverse party,

". . . any other party may file and serve on the proposing party, any amendments which he may propose to the . . . statement. . . . If no amendment shall be served within the time aforesaid, the proposed . . . statement shall be deemed agreed to and shall be certified by the judge at the instance of either party, . . ." Rem. Rev. Stat., § 389.

The statute is clear that the trial court may correct or supplement the certificate, but there is no language in the statute expressly or impliedly authorizing the trial court to enlarge or supplement a statement of facts which has not been filed within the ninety-day period, or to enlarge or supplement a statement of facts, if no objections are made to the proposed statement within the statutory ten-day period. Whether the parties or the court endeavor to enlarge the statement of facts, such supplementation must be initiated within the periods prescribed by the statute. This is not out of harmony with the rule that the trial court may correct or supplement itscertificate to speak the truth. Tremblay v. Nichols,187 Wn. 109, 59 P.2d 1123; State v. Sherwood, 166 Wn. 160,6 P.2d 595; Kliks v. Tenet Mortgage Co., 162 Wn. 514,299 P. 367; State v. Schafer, 154 Wn. 322, 282 P. 55.

In State ex rel. Hersner v. Arthur, 7 Wn. 358, 35 P. 120, followed in Warburton v. Ralph, 9 Wn. 537, 38 P. 140, we held, construing § 11, chapter 60, Laws of 1893, p. 115 (present Rem. Rev. Stat., § 391), that, where a statement of facts has been served on the respondent with notice of settlement on a day named, and the respondent makes no objection thereto until after the statement is settled and certified by the trial court, mandamus will not lie to compel the trial court to correct the statement as to admitted testimony and amend the certificate to conform to the new statement. We said:

"It seems to me that there can be but one construction given to this statute; that the intention of the legislature is plainly deduced from the language employed, viz., that a time and place have been denominated for amendments to be presented by respondent to the statement of facts (a copy of which has been served upon him), if he desires to make any amendments; and if he does not appear at such time and place and offer any objections or amendments, the judge must conclude that he accepts the statement filed as the proper statement, and that no amendments are desired; for the law says plainly that, under such circumstances ``the proposed bill or statement shall be deemed agreed to, and shall be certified by the judge;' and under such circumstances, in my opinion, the judge has no other duty to perform; no duty of investigation is imposed upon him excepting where amendments are offered, and there is a contest instituted thereby. If respondents were allowed to disregard the time which is prescribed under the law for filing objections to the statement or amendments thereto, then all the provisions of the law as to time are utterly without force or meaning. The idea that the judge is only to enter into an investigation when the statement is questioned by the respondent is borne out by the provisions of § 11 (Laws 1893, p. 115), which provides:

"``The judge shall certify that the matters and proceedings embodied in the bill or statement, as the case may be, are matters and proceedings occurring in the cause, and that the same are thereby made a part of the record therein; and, when such is the fact, he shall further certify that the same contains all the material facts, matters and proceedings heretofore occurring in the cause and not already a part of the record therein, or (as the case may be) such thereof as the parties have agreed to be all that are material therein.'

"Under the provisions of this section, if the parties agree that the statement contains the material facts the judge shall so certify. This provision, taken in connection with the provision in § 9, that where there is no amendment the proposed statement shall be deemed agreed to, leaves very little to be said so far as the intention of the lawmakers is concerned. In this case there was, under the law, an agreement that the statement certified contained all the material facts, and the parties are bound by it. While the statute provides that the judge may correct or supplement his certificates according to the facts at any time before an appeal is heard; and that he may be compelled to do so by mandate of this court, he can only correct it in accordance with the facts as shown by the statement at the time of the settlement; but he certainly is not given authority to correct the statement and then make his certificate conform to the facts of the new statement, for this would be virtually a new settlement of the statement of facts, which, as we have said above, would destroy the force of the law prescribing the time; and the questions which ought to have been settled within ten days after the filing of the statement would remain unsettled up to the time of hearing of the appeal, and no intelligent preparation for the hearing of a case in this court could be made.

"It is objected that this construction of the statute would place the settlement of a statement of facts in the hands of the litigants, or their attorneys, and that the effect might be to make this court a court of original jurisdiction. A glance at § 12 of the same act (Laws 1893, p. 116), leaves no doubt of the legislative intention to confer this power of settlement on the parties, for it specially provides that in case of the death of a judge the statement may be settled by stipulation of the parties with the same effect as if duly settled and certified by such judge while still in office; so that the only question remaining in my mind is the question of the constitutionality of the act, and I hardly think that the remote possibility of attorneys entering into a collusion, in violation of their oaths as officers of the court, to impose a false record upon this court is a sufficient consideration to warrant this court in holding the legislative act unconstitutional. If such a case should arise, and was brought to the attention of the court, I have no doubt of the power of the court to relieve itself of the attempted imposition.

"The question of notice presented at considerable length in the petition, it seems to me, cannot be considered here. If legal notice was not given to the respondent, his remedy is to strike the statement of facts, but he cannot rely on his want of notice until after the time for amendment has expired, and then abandon his position, and seek to substitute another statement, or another certificate, which would destroy the force and effect of the statement settled, and which could not be brought here with a certificate of any other character."

On June 2, 1939, six days subsequent to the filing and serving of the proposed statement of facts, plaintiff in Livermore v. Northwest Airlines objected to the proposed statement of facts, but did not offer any amendments. The objection was timely, hence as effective as if amendments had been proposed.

The opinion in State ex rel. Snook v. Jurey, 101 Wn. 1,171 P. 1014, contains language of some comfort to the majority, but all that we held in that case was that a timely objection, as in the case at bar, that a proposed statement of facts does not contain all of the facts occurring in the cause, satisfied the statutory (Rem. Rev. Stat., § 389) requirement that amendments be offered within ten days to a proposed statement of facts to prevent same from being certified as an agreed statement of facts.

State ex rel. Klein v. Superior Court, 36 Wn. 44,78 P. 137, is not in point. In that case, through mistake and inadvertence, certain affidavits bearing on motion for new trial were not incorporated in the statement of facts, although same were filed, read to, and considered by, the court.

In In re Holburte's Estate, 38 Wn. 199, 80 P. 294, we held, stating our "decisions thereupon are not harmonious," that, although no amendments are proposed to a statement of facts and the same is certified to contain all the material facts, the trial court may, on motion of the respondent at any time before the hearing on appeal, change the certificate to show that the statement does not contain all the material facts. The dissenting opinion, as follows, of the late Chief Justice Rudkin is a complete answer to disregard of the statute (Bal. Code, § 5060; Rem. Rev. Stat., § 391):

"By failing to propose amendments to the statement of facts at the time and in the manner provided by law, the respondent waived all objections thereto, and should not thereafter be heard to complain that the statement does not contain all the material facts, either in this court or in the court below. To permit a respondent to withhold his objections or amendments at the proper time, and thereafter defeat the appeal by procuring a change in the certification of the trial judge, is a travesty on justice which I cannot sanction. I think the change in the certificate was in derogation of law and justice, and should be utterly ignored by this court."

In State ex rel. Royal v. Linn, 35 Wn. 116, 76 P. 513, we held that, after a proposed statement of facts had been filed, and no amendments were proposed within the ten-day period, the statement of facts should be certified as proposed, and the trial court was without power to permit the same to be withdrawn on motion of the party proposing it for the purpose of amending, refiling, and serving the statement, although the time for filing and proposing a statement had not expired. We said:

"By the filing and service of a proposed statement, the proposing party thereby waives any further time included within the statutory or extended limit. In the absence of some fraud in the premises, he must be presumed in law to know what the proposed statement contains, and to intend that its contents shall be what they are. When, therefore, he has proposed a statement which is unobjectionable to his adversary, the law provides that, after ten days, the court shall certify it as if it were an agreed statement in the case. We therefore think the respondent should deny the motion for leave to withdraw and refile the proposed statement in amended form, and also that the original statement as proposed should be certified."

In State ex rel. Fetterley v. Griffin, 32 Wn. 67,72 P. 1030, we held that, where proposed statement of facts was regularly filed and served and three days later the adverse party consented to the settlement and certification, the settlement and certification of the proposed statement of facts upon the waiver by the adverse party of his right to propose amendments within the statutory period of ten days, ousted the court of further jurisdiction over the matter, even if objection were raised to the statement of facts prior to the expiration of the ten days allowed by the statute or the submission of amendments after the filing of the proposed statement.

We held in O'Neile v. Ternes, 32 Wn. 528, 73 P. 692, that a statement of facts filed after the thirty days allowed by statute, but within the sixty days additional permitted by the statute, will not be stricken because no order of the court fixing the time for settling and certifying the statement of facts is shown in the record, in the absence of any showing of proposed amendments to the statement; since, under the statute, the statement is, in such cases, deemed an agreed statement of facts and may be certified by the trial court at any time at the instance of either party.

In Powell v. Nolan, 27 Wn. 318, 67 P. 712, 68 P. 389, we held that, when an appellant files a proposed statement of facts, although not containing all the evidence, and no proposed amendments are filed and served by the respondent, the proposed statement of facts becomes an agreed statement of facts and, under such circumstances, is conclusive on the parties on appeal when the trial judge certifies that the statement contains all material facts. See, also, Hansen v. Nilson, 17 Wn. 606,50 P. 511.

In State ex rel. Baer v. Superior Court, 152 Wn. 407,278 P. 169, we held that, upon a dispute between the parties in settling a statement of facts, a party may not ignore the adversary's objections and ask the court itself to point out the defects, but issue should be taken and tried out, and defects or omissions ordered corrected, or leave to amend obtained, until the defects are cured; and mandamus to this court will not lie where there is no arbitrary action, but a good faith endeavor to perfect the record.

In State ex rel. Roberts v. Clifford, 55 Wn. 440,104 P. 631, the prevailing party filed objections to the proposed statement of facts the day following service upon respondent of appellant's proposed statement of facts, therefore the objections were timely. We required the trial court to order the insertion in the statement of facts, if in the trial court's judgment same was omitted therefrom, of material evidence.

In State ex rel. Fowler v. Steiner, 51 Wn. 239,98 P. 609, we held it was error for the trial court to strike a proposed statement of facts because it is not deemed a proper statement, where it was filed in good faith in an attempt to comply with the statute; since the remedy of the adverse party is to propose amendments or to require that defects be supplied. The motion to strike the proposed statement of facts on the ground that the statement did not contain any matter proper to settle as a statement of facts in any cause, we assume, from examination of the opinion, was timely; hence, under all the circumstances recited in the opinion, the writ should have been granted, on petition of appellant, to compel the trial court to settle proposed statement of facts.

I gather from a reading of the opinion in State ex rel. Daviesv. Superior Court, 3 Wn.2d 102, 99 P.2d 934, that the proposed amendments to the proposed statement of facts were within time, hence that authority is not out of harmony with this concurring opinion.

That State ex rel. Hofstetter v. Sheeks, 63 Wn. 408,115 P. 859, is not in conflict with the views expressed in this opinion, is clear from a reading of that opinion.

In the case at bar, the objections within the ten-day period to the statement of facts permitted the supplementation of the statement of facts. In the absence of objection by a party or the court within the ten-day period to a proposed statement of facts, such statement becomes an agreed statement of facts and must be certified by the trial court as such. The statute so declares, and the more logical opinions of this court so hold.