Hyatt v. Lewis

Per Curiam.

Respondents kave moved tke court to dismiss tkis appeal upon two grounds: (1) Because, on tke examination of tke sureties upon tke appeal bond, tke testimony was not reduced to writing, and attacked to tke certificate of tke judge; and (2) because tkere is no reference made in appellants’ brief to tke pages of tke transcript for verification. As to tke first objection, tke statute (1 Bal. Code, § 6510, Laws 1893, p. 125, § 11) provides:

“At tke time and place named in suck notice, tke surety or sureties must attend before tke court or judge, and may be tken and tkere examined in detail, under oatk, as to tkeir property and otker qualifications as sureties, by any respondent or by tke judge, or by botk. If tke judge upon suck examination is satisfied tkat tke surety or sureties are qualified as suck, to tke extent to wkiek tkey are required,by section 6507 of tkis title to make affidavit, tken ke skall make a certificate to tkat effect indorsed upon or attacked to tke bond, wkiek skall tkereupon stand as a sufficient appeal bond to tke effect expressed in tke condition tkereof.”

Tke record skows tkat tke proper certificate was made, and we tkink tkere is no merit in tke objection tkat tke testimony taken on tke examination was not reduced to writing. Undoubtedly it would be tke rigkt of a party aggrieved by tke kolding of tke judge to kave a record made, if ke desired to avail kimself of tke conclusion reacked, but we fail to see tkat any question is presented by tkis branck of tke motion.

Second. Tke appeal in tkis case was from an order sustaining a demurrer to tke complaint, and, as tkis is tke only error assigned and the transcript is very short, there is little occasion for the rigid enforcement of the rule requiring briefs to refer to the pages of the transcript for verification. Froelich v. Morse, 15 Wash. 636 (47 Pac. 22). The motion to dismiss must be denied.

On the merits, the question presented by the record was squarely passed upon in Bettman v. Cowley, 19 Wash. 207 (53 Pac. 53), decided by this court subsequent to the preparation of the briefs in this case. TJpon the authority of that case, the judgment of the lower court must be reversed, and the cause remanded, with direction to overrule the demurrer to the complaint. It is so ordered.