Union Trust & Savings Bank v. Amery

Main, J.

— The plaintiff brought this action as trustee in bankruptcy for the Syphers Machinery Company, a corporation, for the purpose of recovering from the defendant $5,-500, alleged to be due upon the purchase price of corporate stock in the insolvent corporation. After issues were joined, the cause was tried to the court and a jury, and resulted in a verdict for the defendant. Thereupon judgment was entered upon the verdict. The plaintiff appeals.

The respondent moves to dismiss the appeal because the appellant’s abstract does not conform to the statutory requirements or to the rules of this court. The statute (Laws of 1913, ch. 116, p. 349; 3 Rem. & Bal. Code, § 1730-1 et seq.), requires that the appellant, at or before the time when he is required by rule or statute to serve his opening brief, shall serve upon the opposite party an abstract of so much of “the record and statement of facts” as he may deem necessary to a proper hearing of the case upon appeal. Rule 6 of this court requires that the abstract shall be in the same form as the transcript, shall be indexed, shall contain appropriate references by pages to the transcript or statement of facts, and shall be substantially in the form there prescribed.

The abstract served by the appellant with its opening brief contained only so much of the evidence as the appellant deemed necessary for the proper hearing of the assignments of error. No part of the record, other than the statement of facts, was embodied in the abstract. It was not indexed. It did not contain references by pages to the statement of facts, and did not follow the form prescribed by the rule. That the abstract did not conform to the statute and the rules of court was recognized by the appellant. When it filed its reply brief, it also filed an abstract of the record which conformed to the statute and the rule. But this would not cure the defects in the former abstract. The first abstract was little if any better than no abstract at all. The ■case falls squarely within Ollar-Robinson Co. v. O’Neill, 80 Wash. 1, 141 Pac. 194, and the recent case of Caldwell v. Klyce, 80 Wash. 469, 141 Pac. 1042. An order will be entered dismissing the appeal.

Since the failure to prepare an abstract as required by statute and rule was due to inadvertence rather than design, we may say that we have looked into the record and find nothing therein that would justify a reversal.

Appeal dismissed.

Crow, C. J., Gose, Ellis, and Chadwick, JJ., concur.