Kaplow v. McCrory

In this action, which was instituted to recover for wrongful death, the verdict was in favor of the plaintiff. From the judgment entered, motions for judgment notwithstanding the verdict and for a new trial having been overruled, the defendants appeal.

The judgment from which this appeal is prosecuted was entered May 10, 1933. On August 10, 1933, ninety-two days subsequent to the entry of the judgment, the statement of facts was served upon counsel for respondent. On August 14, 1933, ninety-six days after the entry of the judgment, the statement of facts was filed.

[1] Not having been filed within the ninety-day period —

"A proposed bill of exceptions or statement of facts must be served and filed either before or within ninety days after the time begins to run within which an appeal may be taken from the final judgment in the cause . . ." (Rule of Practice VII, Rem. Rev. Stat., § 308-7)

— the statement of facts must be stricken. Perkins v. Perkins,158 Wn. 351, 290 P. 855; Chelan Electric Co. v. Wick,148 Wn. 479, 269 P. 827.

The errors assigned are the giving of certain instructions, the admission and rejection of certain evidence, and the denial of the motion for a new trial. There being no statement of facts properly bringing the evidence here, and no question being presented which we can decide without the evidence, the judgment must be affirmed.

It is so ordered.