APPEAL AND ERROR - CONTINUed.
suit; and no such waiver, expressed or implied, will give the
supreme court jurisdiction of a cause that is not appealed within
the time prescribed by statute. - Cogswell v. Hogan..
3. Vacating Judgment, Under § 109, Code Wash. T., an order of the
district court vacating a judgment within five months subsequent
to the adjournment of the term when rendered, is not subject to
review in the supreme court, and therefore not appealable.-
Gower v. Gower..
4. Final Order-Refusing Temporary Injunction. An order refusing
a temporary injunction is not a final decision under the organic act
(Rev. Stat. U. S., § 1869), and no appeal can be taken therefrom.—
Mahncke v. Tacoma
5. Voluntary Dismissal of Action. A judgment summarily dismiss-
ing a suit, when the complaint states a cause of action, is appeal-
able; but when the order dismissing the action is made at appellant's
request, it is a voluntary dismissal, and no appeal can be taken
therefrom. - Id.
6. Final Order- Sustaining Demurrer. No appeal can be taken from
an order of the district court sustaining a demurrer to a com-
plaint, as such order is not a final decision within contemplation
of § 1869, Rev. Stat. U. S., of the organic act of Washington
Territory. Tripp v. Magnus....
7. Appeal from Justice of Peace - Liability on Bond. On an appeal
from a justice of the peace to the district court, the sureties on
the appeal bond, by signing the bond, submit to the jurisdiction
of the court, and are concluded by its judgment, under the pro-
visions of § 1867, Code Wash. T.- Cline v. Mitchell,............
8. Sureties on Appeal Bond — Necessary Parties on Appeal. In such
case, the sureties, being proper parties to the judgment in the
district court, should be made parties to the writ of error in the
supreme court, or, if they do not desire to become plaintiffs in
error, notice should be served upon them in accordance with § 454,
Code Wash. T., and proof thereof filed with the clerk of the
supreme court. Id....
Subsequent Term. Notice of an appeal given in
open court within the time allowed by law, but at a term of court
subsequent to the term when judgment was rendered, is sufficient,
though appellees were not present, nor had notice been served on
them to appear.
McMillan v. Mau....
10. Justice of Peace— Jurisdiction- When Error not Waived by Trial.
On an objection raised by a corporation, in an action against it be-
fore a justice of the peace, that its principal place of business is in
another county than the one where the action is brought, the de-
fendant, in the absence of any offer to amend the return of service,
or make other showing to aid the jurisdiction of the justice, may
have the action dismissed without prejudice, under the provisions
of § 1780, Code Wash. T. Under the provisions of said § 1780 the
defendant may take advantage, on appeal, of any error in overrul-
ing its objections, even after a trial upon the merits. — Knoff v.
Co-operative Colony.....
11. Same-Amendments in District Court. On an appeal from a jus-
tice of the peace to the district court the constable's return cannot
be amended for the purpose of aiding the transcript from the lower
court, and showing jurisdiction in the justice. Id.....
12. Record Opinion of Trial Judge. On appeal, the written opinion
of the trial judge, not purporting to be a finding of facts, will, on
motion, be stricken from the transcript. — King County v. Hill.... 63
13. Notice of Appeal — Of Settlement — Precedence.
Under the appeal
act of 1883, allowing six months in which to serve notice of appeal,
and thirty days in which to give notice of a settlement of the state-
ment of facts, it is immaterial which of the notices precedes the
other. Id..
14. Statement of Facts - Where Settled. Where judges are allowed by
statute to exchange courts on request, a judge, who has tried a
cause in another district than his own, may certify and settle the
statement of facts, after returning to his own district. Id...... 63
15. Same-Certificate of Trial Judge. A certificate by the trial judge,
that the statement "contains all the material facts in the cause re-
lating to the execution of the bond in suit (except the original
bond itself), and the ruling and decision on the question of the ex-
ecution thereof, and the dismissal of said cause," is not a sufficient
compliance with the provisions of the appeal act of 1883, requiring
that the statement shall contain "the material facts in the cause."-
Id...
16. Same — Insufficient Certificate. The fact that appellees were pres-
ent with a copy of the proposed statement, when the facts were
settled, and offered no amendments, does not estop them from
moving to strike out the statement of facts on account of the insuf-
ficiency of the judge's certificate. - Id...
17. Statement of Facts Stricken - Motion to Affirm.
statement of facts has been stricken out, a motion to affirm the
judgment should be denied, and the appeal heard upon its merits,
where there are several assignments of error.-Id.....
18. Exception-Sufficiency of. On an application by defendant to the
district court for an order citing the plaintiff to show cause why
the judgment against defendant should not be satisfied and dis-
APPEAL AND ERROR-CONTINUED.
charged of record, an order made by the court that the judgment
be modified and reformed by striking out and disallowing the at-
torney's fee included therein, was erroneous for the reason that it
was not within the scope of the original order to show cause, and
a bare exception to such final order was, under the circumstances,
sufficient. Hawks v. Votaw....
19. Record Time of Filing. Section 1 of the appeal act of 1883, re-
quiring the transcript to be filed in the supreme court within the
time required by law, is governed by § 460 of the code as to time
of filing; but where a transcript has been filed less than fifteen
days before the first day of the next term of the supreme court,
appellees can take advantage of such failure only in the manner
provided by § 461 of the code. - Haas v. Gaddis....
20. Statement of Facts - Omitted Instruction not Claimed as Material.
Where the trial judge certifies that the statement contains all the
material facts in the case, the omission of an instruction not
claimed to be material by appellee, and which neither party has
attempted to bring up, is no ground for dismissing the appeal.
Id......
21. Stipulation as to Time and Place of Settlement of Statement made by
Attorney-When Binding. Where it appears from the record that
an attorney appears generally for all the defendants in an action,
his stipulation that a notice of appeal might be given and a state-
ment of facts settled at another time and place than named in the
notice therefor, is binding on all the defendants, although the
record also shows some of them were represented specially by
other attorneys. - Haas v. Gaddis...........
22. Same. The court will not presume, merely from the fact
that one of the defendants is represented specially by a firm
one of whose members has the same surname as the attorney
signing the stipulation, that the latter is a member of said
firm. Id..
23. Record-Not Necessary to Attach Statement to Transcript. Under
the appeal act of 1883, it is not essential that the statement of facts
should be attached to the transcript, the statute only requiring it
to be sent up therewith; and where the certificate of the trial judge
describes the statement of facts as having the same number and title
as the papers in the transcript, and the statement and transcript
were filed together in the supreme court, the statement is sufficient-
ly identified with the transcript to be considered in connection
therewith. Id.....
24. Parties. Where judgment has been rendered against three de-
fendants in the district court, and two of them sue out a writ of
error, and, in lieu of serving notice thereof on the third defendant,
APPEAL AND ERROR-CONTINUED.
as required by the code, file their affidavit that the defendant not
joining in the writ is not within the Territory of Washington, and
that diligent endeavor has been made to serve him with a copy of
said notice, the appeal will be dismissed. - Nelson v. Territory... 125
25. Talesman Summoned by United States Marshal — Error not Preju-
dicial Where the court orders the United States marshal to sum-
son a talesman from the bystanders to fill an exhausted panel, the
sheriff being present, and, so far as the record shows, not disquali-
fied, and the defendant objects but does not interpose any chal-
lenge to the juror, and it does not appear that the juror was in any
way unfit to try the case, there is no error prejudicial to the de-
fendant. - Meeker v. Gardella
26. Exception to Instructions. Where instructions consisted of a series
of separate propositions, and defendant's exception to the charge
was "to the giving of which and to the giving of each part thereof,"
not otherwise pointing the specific parts to which exception was
taken, the exception is insufficient, as the court cannot say that no
part of the charge was sound. - Id......
27. Defective Brief- Rules of Court. It is within the discretion of the
court to grant or refuse a motion to strike appellant's brief, for the
reason that it does not contain the pleadings and an abstract of the
case, as required by the rules of the supreme court, as such matter
is required purely for the convenient reference and information of
the court. Sheehan v. Levy.....
28. Notice Time. Where two days' notice was given appellees of the
settlement of a statement of facts, and the statement was settled
ex parte, it will not be considered by the supreme court on appeal,
as the appeal act of 1883 requires that ten days' notice be given.—
Taylor v. Osborn ..
29. Denying Continuance · - No Prejudicial Error. The ruling of a trial
court denying a motion for a continuance will not be disturbed on
appeal, where it appears that defendant did not use due diligence in
endeavoring to secure the attendance or depositions of absent wit-
30. Final Order - Injunction. In an action for injunction, where de-
fendant moves to dissolve the temporary injunction granted plain-
tiff, and also for an injunction against plaintiff, an order denying
both branches of the motion without adjudicating upon plaintiff's
prayer for a permanent injunction, is not a final judgment, from
which appeal will lie to the supreme court. - Johnstone v. Eisen-
31. Objectionable Instructions - When not Prejudicial. Although there
may be isolated sentences in an instruction which, in themselves,
are objectionable, and the instructions probably intimate to the
APPEAL AND ERROR- CONTINUed.
jury the opinion of the trial judge as to the value of some portions
of the evidence, yet, if the instructions clearly give the jury to un-
derstand that the facts are exclusively for them, and, taken as a
whole, fairly state the law applicable to the evidence introduced,
the judgment will not be reversed. — White v. Territory......... 279
32. Time of Filing Causes. As the constitution of this state provides
that the supreme court shall always be open for the transaction of
business, except on non-
n-judicial days, there are no terms of the su-
preme court in the sense in which they were formerly held, but
only a division of its sittings into sessions. Hence, § 460, Code
Wash. T., requiring causes to be filed in this court fifteen days be-
fore the first day of the next succeeding term, no longer applies in
such cases. Skagit, etc., Lumber Co. v. Cole....
330
33. Same — Rules of Court. There being no statute prescribing the
time within which the transcript on appeal must be filed in the su-
preme court, reference must be had to the rules of this court to de-
termine the time within which the transcript should be prepared
and filed. Id.....
34. Filing Briefs - Extending Time. If sufficient cause is shown
for the failure of appellant to file his briefs, as required by
the rules of this court, the court will deny a motion to af
firm the judgment, and will grant appellant an extension
of time within which to file briefs. - Id.....
35. Reversing Void Judgment. Where the judgment of a lower
court, which was absolutely void for want of jurisdiction
over the subject-matter of the action, has been removed to
the supreme court, the supreme court, on a motion to dis-
miss the appeal, will, for the purpose of clearing the record,
order the judgment of the lower court reversed. -Stewart
v. Lohr....
36. Sufficiency of Evidence - Testimony not in Statement of Facts.
The supreme court will not pass upon the sufficiency of evidence
to sustain the findings of fact, nor its admissibility concerning
certain matters, where the statement of facts does not include
the testimony in so far as it touches the objectionable findings,
and does not contain any question or answer, nor any objection,
ruling or exception. — Carstens v. McReary... . .
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37. Jurisdiction Amount in Controversy. Where the first paragraph
of a complaint contained an allegation of $200 damages against
defendant, for which demand had been made before suit, and the
second paragraph alleged damages at $500, the sustaining of a de-
murrer to the latter paragraph does not reduce the amount in con-
troversy to $200, there being no amendment reducing the demand
below $700; and the supreme court has jurisdiction thereof on ap-
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