Coleman v. Yesler , 1 Wash. Terr. 591 ( 1879 )

Dismissal of appeal,

Greene, J.

The certificate of the clerk to the transcript in this case fatally defective. There- is here neither a duly authenticated transcript, nor a duly authenticated notice of appeal. There is nothing to show us that any appeal has been taken. This point now eomes to* our notice. In this posture no well-supported motion to perfect the transcript or the authentication thereof being before us, we can do nothing but dismiss the appeal. Let the appeal be dismissed.

Motion to amend certificate to transcript.

Opinion by

Greene, Chief Justice.

The certificate of the clerk of the court below to the transcript, or to what purports to he the transcript, herein, as follows:

“Territory of Washington, ) Third Judicial District. )

“I, James Seavey, clerk of the District court of the Third Judicial District, etc., do hereby certify the foregoing to be a true, full and correct transcript of the record in the action, wherein Henry L. Yesler is plaintiff, and James M. Coleman is defendant, as appears, and is included, within pages--to-herein inclusive.

“Witness my hand and the seal of the said court, at Seattle, this the-day of--, A. D., 1819.

“JAMES SEAVEY, Clerk.

“By James B. Ludlow, Deputy.”

Such a certificate is obviously void, both for want of defiidleness in describing the matter certified as a transcript, and for lack of the seal of the court below.

And, of course, if the certificate is insufficient, we have no evidence that we have any transcript here.

~We are resolved that such a defective certificate may be amended,, or a good one substituted, upon motion made to this court, for good cause shown.

But, in this case, we are satisfied that it would be impossible for the clerk below to certify to us, a complete transcript.

This is an appeal case; before we can enter upon its hearing we must be put into possession of the case as fully as it was possessed by the lower court.

Both the pleadings and the evidence must be fully brought up. But, as appears to us, by the original bill of exceptions, which, under Section 453 of our statute,' the appellant has brought here, certified by the District judge, it is, at this day, utterly impossible to place before us the whole of the evidence in this cause.

A very considerable portion of the written and documentary evidence used in the lower court is neither incorporated with the bill of exceptions, nor referred to therein by obvious and unmistakable indicia.

For the purpose of this appeal there is virtually no bill of exceptions.

Much of the evidence below was not written testimony, within the meaning of Section 453 of our statute, and consequently could not be certified by the cleik, under this section; documentary evidence aside, that testimony only is written testimony, to which, after it has been written out, the party has assented, as that to which he makes oath; such assent would regularly be expressed by the signature of the party.

■Ve cannot see how the granting of this motion would benefit ■ appellan t.

There are here apparent fatal defects that could not be • cured by a clerk’s amendment.

The motion is denied.

Motion to affirm the judgment below..

To determine this motion it seems necessary to us to de- ■ cide two questions.

1. Does the purport of our statute require an appellant to specify or define those parts of the proceedings of the court below in which he claims there has been error?

2. "Was it competent for the legislature under our organic law to require this?

In answer • to the first question, it is sufficient to say, that the natural and unstrained and consistent interpretations of Sections 460,465 and 468 of our Civil Practice Act clearly command in every appeal case, a similar specification of errors committed in the lower court to that which constitutes an assignment of errors in a suit in error. This interpretation gives effect to every word and syllable in those sections, and although it requires us to take in a popular or broad.sense, the words “appeal” and “appealed” where they occur next previous to the words “in case of an appeal” in the 460th Section, and the words “ assignment of error” when they occur in Section 465, these variations of reading are not forced but the fact of the inartificial use of these words appears in each instance on the surface of the section in which it occurs. '

The second question, in our opinion, requires a somewhat more extended discussion.

Undoubtedly it is perfectly competent for the legislature to regulate the practice upon appeals as well as upon writs of error. Legislation is not to be accounted incompatible with organic law, and therefore void, if its language is susceptible of any fair interpretation not incompatible therewith.

WTiere a statute can stand for the regulation of practice in cases of appeal, it will not be adjudged inconsistent with organic law and void.

Our organic law entitles a party in an equity suit to an appeal, that is, to a trial anew in the superior court upon the pleadings and evidence that were before the inferior court. The right to such a new trial, the legislature of the Territory cannot by any system of statutory rules, take away nor abridge.

But the legislature can, by way of regulation, prescribe a certain course or method of conduct which the party must pursue in order to enjoy that to which he is by organic law entitled.

Our legislature have enacted that upon appeal the party appealing shall indicate what part of the proceedings of the inferior court he appeals from, and shall define such part; in Sections 465 and 468 of the Practice Act, such definition is referred to as an assignment of errors.

The enactment that he shall make such definition in no way prevents his appealing, and neither in form nor effect takes away nor abridges his full right to and enjoyment of an appeal. It simply requires, that in order to the exercise and enjoyment of that right he shall make a specific statement of what was erroneous in the proceedings below.

If to make such a statement were impossible or unconscionable, then it might well be argued that the legislature, by requiring it, departed from the organic law. But to make such a specification is easy. And far from being unconscionable- it is very reasonable and desirable thing, for it tends to simplify and facilitate the labors of both judges and counsel in the appellate court.

That the legislature itself had no mind to abolish an appeal, and substitute for it a suit in error or some thing different from a technical appeal, but resembling a suit in error is evident from its language. Sections 447, 460, 465 and 468 are inconsistent with any other view than that the legislature intended to preserve to suitors the full benefit of a technical appeal. Indeed, some of the sentences in which a technical appeal is clearly recognized and allowed, are the very sentences wherein that specification of error which appellants must make is- commanded.. A legislature is deemed to- speak intelligently and not to stultify itself in a single breath. This specification, required by statute, is in the nature of a supplementary pleading in the superior court, and tends to narrow down, so far as the party appellant will eonsent, the inquiries of the court above. The idea is that the appellant shall, as far as he can consistently with his equities, restrict himself in the range he will cover in the conrt above and for facilitation of business declare such restriction specifically.

Because he is obliged to make such a specification, or as it might in general language be termed assign errors, he is not thereby nor in anyway precluded from having a thorough rehearing above.

Let us turn for an analogous case for illustration. A plaintiff embodies his claim in a complaint. That claim is one completely open for defense. It is a case that has never been tried and the defendant has a right to his day in court to have all ,and every part of it coi\tested.

How, by regulation of statute, it might be provided that the defendant could contest it under a general denial, or it might be provided that he must attack it, specifically part by part. But a regulation requiring specification would not take •away or abridge the defendant’s right to an utter contest of the whole of plaintiff’s case.

So, in an appeal in chancery, the pleadings and the proofs •are brought up, with the right to the defendant thoroughly to ■sift them before the appellate court, and have an entire new hearing and judgment. The case is opened down to the bedrock of pleadings and proofs by the mere fact of the appeal. But there have, in reality, been previous proceedings upon these same pleadings and proofs. How, if by way of supplement to the record below, and with a reference to the proceedings in the lower court, the statute require the defendant to specify, in this court, those parts of the proceedings below by which he will stand, or what is the same thing, défine those parts by which he will not stand, the statute does not, thereby, at all deny him any benefit of his appeal, but simply imposes on him the mechanical task of making a list of what he thinks wrong in the action of the inferior court.

To be sure his list is part of the record and will bind him. But it binds him only as he consents to be bound, for he himself constructs the list. If he does not make it cover every question involved in the pleadings and proofs helow, it is because he so elects, and not because the law confines him.

Under our practice, a case is brought into the appellate court by the service of the proper notice of appeal. Being there, it is there as a case for trial de novo. The first step toward that trial de novo is a step in the appellate court, and in a definition by the appellate court. In logical order, this definition is subsequent to the notice of appeal, but in time, when no irregularity supervenes, it is simultaneous with being incorporated in the notice. The definition is effected by referring to the proceedings had in the inferior court. The reference is not made on the theory that those proceedings are still standing valid, but liable to be reversed, for that would be utterly incongruous with the idea of an appeal, but the reference is made for the sake of convenience, because the proceedings furnish the readiest, and most natural and intelligible exhibit for defining wherein, and how far, the judgment of the court below was wrong.

The definition as we have said, is in the nature of a supplementary pleading in the appellate court.

In form, though not in logic, it is analogous to an assignment of errors in a suit in error.

The fact of this formal analogy has been utilized by the legislature, so as to assimilate and unify the procedure in transferring here, from inferior courts, and bringing to a hearing,, both cases at law and cases in chancery.

We fail to see any want of competency in the legislature to do this. It is a mere matter of regulating practice upon 'appeals.

Under this practice, a definition of assignment of errors was necessary, in this case. In the absence of any, the cause should either be dismissed or the sanie judgment rendered here as was rendered in the court below.

Let the motion be granted and let a like judgment be entered here to that rendered in the District court-