Seattle & Walla Walla R. R. v. Ah Kow

Opinion on motion to dismiss, per

Greene, G. J.

In this motion to dismiss, the appellees urge, that what purports to be the evidence is not sufficiently well certified to fulfill the requirements of § 453 of the Civil Practice Act and § 10 of the act creating an Official Short Hand Reporter. We do not understand it to be questioned, but that, aside from the evidence, the clerk’s certificate sufficiently informs us that we have a full transcript. It therefore, becomes material to inquire, whether the issues, which the appeal presents, are such as to call for a review of evidence. Looking into the record, we discover, that at least, one objection to the judgment below arises from an alleged lack of support in the pleadings- Light to explore the legal sufficiency of these pleadings can not be furnished by testimony. Given, however, pleadings good in law to sustain the judgment, and it then becomes necessary to produce the proofs and decide whether they too are sufficient.

Objection is made that the complaint contains no cause of action. Inspection of the clerk’s certificate, transmitting the transcript, shows that we have the complaint and the judgment here. No evidence can be anything but surplusage in determining the question of jurisdiction thus presented. To compel a defendant, resisting a bad complaint, to bring up evidence would be folly and oppression, for the transcript is full and complete Without it. He was subjected to vexation and cost enough, in being obliged to push through the lower court over proofs unreasonably arrayed against him. Entering this court to get redress, he ought not to be compelled to transport and marshal against himself, at his own expense, the futile forces of his adversary.

Several certificates in this transcript would seem to have been procured out of commendable caution, and yet to be in fact entirely superfluous. The parties had, it appears, begun to try the cause in the District Court, and had proceeded so far, with the aid of the official reporter, as to have put in all their testimony and exhibits, when the proceedings were interrupted by the incoming of a successor to the presiding judge. Rehearing before the new officer followed as of course. Expenses of re-introduction of proofs was obviated by both parties tacitly treating the notes of the reporter and the exhibits as if they correctly presented the evidence. , Neither party ever questioned the propriety of hearing and determining the cause upon that basis, and accordingly thus it was heard and thus it was determined.

Getting the evidence up into this court, by proper certificates, seems to have been, under the circumstances, a matter of some perplexity, and it was sought to be accomplished by procuring one certificate from the retiring judge, a second from the incoming judge, and a third from the clerk, all under § 453, and still a fourth from the reporter under § 10. These certificates were all valueless except that from the incoming judge. He alone tried the ease, and he alone could certify what constituted all the evidence on which he tried it. Only when the evidence consists wholly of written testimony, can it be certified by the clerk (§ 453); and written testimony is such only as after reduction to writing has received the assent of the witnesses, (Colman v. Yesler, 1 W. T. R. 591-3.) Eor the reporter’s certificate there could be no use, because the cause was not tried on the evidence taken down by him, as upon evidence taken under the Reporter’s Act, but rather as upon a certain mass of writing, having no longer any official solemnity or sanction for the purposes of that trial, but utilized, by consent of parties, for convenience’s sake, to speak the facts as they would be spoken if the witnesses were recalled.

Gowan v. Petit, et al., Pincus, et al. v. Light, and Colman v. Yesler have been cited by counsel to sustain this motion. Of these cases, the first two differ from the one before us, in not presenting any question of insufficiency of the pleadings, and the last differ from all, in having, aside from the evidence, a defective Clerk’s certificate. Dismissal in the last case was granted upon the ground that the certificate brought up nothing at all. In delivering its opinion, the Court intimated that they were satisfied, from what they saw in the record, that all the evidence could not 'be produced before them, and that consequently it would not be likely to avail the appellant to get an amendment of the certificate. We did not, at the time, have fairly before us the question, whether, if the pleading were objected to, we would insist on having the evidence brought up on pain of otherwise not- hearing the case, and our suggestions about the .impossibility of reaching the evidence must be ■taken as importing that the complaint was n'ot regarded open to the exceptions urged to it. It is our present opinion, that when the objection to the judgment is that it does not consist with the pleadings, then it is not necessary to' bring up the evidence, but that otherwise the production of the evidence is essential.

Let the motion be denied.