Nash v. Nash , 23 Wash. 2d 448 ( 1945 )

In his dissent, Grady, J., refers to and quotes Rem. Rev. Stat., § 1270 [P.P.C. § 44-19], which provides, upon application, for the restoration of a lost record by the court before which the action or proceeding is pending and of whose files the lost record was a part. This is a general statute referring to all courts of this state, the power of the court to be invoked upon application by a proper party, the authority of the court being limited in time to the pendency of the action before that court.

In the case at bar, it does not appear that any application to restore a lost record was ever made, and the superior court having entered its final order in the case at bar, the action was no longer "pending" in that court. It is also true that, at the time the trial judge certified the statement of facts nunc protunc as of September 9, 1944, jurisdiction of the cause had been removed to this court by the seasonable filing of notice of appeal and bond. This court then had jurisdiction of the cause, and if it proved necessary or desirable to restore a lost record, application should have been made to this court for such restoration. This court then might have referred the matter to the superior court for hearing, and, if appropriate, to enter an appropriate order; but no such procedure was invoked.

Of course, it was the duty of the trial court to hear any application to certify a statement of facts and, if a proper one was presented, certify the same. In my opinion, the jurisdiction of the superior court was limited and did not extend so far as to authorize that court to restore a lost record.

The trial court never made any statement or finding whatsoever as to the date the proposed statement of facts had been filed with the clerk of the court, or that it ever had been so filed.

As stated in the majority opinion, the words written under the clerk's file mark, "nunc pro tunc as of September 9, 1944," amount to nothing and must be disregarded. In my opinion, there is no basis whatever for any presumption that that writing was made by the clerk with authorization or authority.

This court in State v. Schuman, 87 Wn. 590, 152 P. 3, stated that the court or judge who tried the case might, and that it was his duty to, restore a lost portion of the clerk's file pursuant to the provisions of Rem. Rev. Stat., § 1270, above referred to. The question presented was correctly decided and, in my opinion, the language of the court above referred to was inadvertently used, as at the time of the rendition of the opinion, the case was no longer "pending" before the superior court, but on the contrary was pending before this court. Of course, as stated in the opinion, the party complaining was not without remedy, but might by way of an application to this court have had the lost record duly restored. The language above referred to in the opinion cited was an erroneous statement of the law, and to that extent the case should be overruled.

For the reasons stated, I concur in the opinion of the majority.

MILLARD, J., concurs with BEALS, C.J.