Taylor v. Andres

Main, J.

The purpose of this action was to recover damages for breach of a written contract. After the issues were framed, the cause was tried to the court and a jury. A verdict was returned in the sum of $800. The defendants thereupon interposed a motion for a new trial upon various grounds. Upon hearing this motion, the court directed that a new trial would be granted unless the plaintiff should elect to remit from the verdict the sum of $200. The plaintiff thereupon filed his election to accept a judgment for $600. The motion in other respects was denied. A judgment was entered in favor of the plaintiff in the sum of $600. The defendants appeal.

Upon this appeal, but one question is urged, and that is the misconduct of the jury. The respondent opens his answering brief with a motion to strike the statement of facts, one of the grounds of the motion being that the statement of facts is not certified as required by law. Aside from the formal parts, the certificate is as follows:

“That the matters and proceedings embodied in the foregoing statement of facts are matters and proceedings occurring in said cause.”

The statute, Rem. & Bal. Code, § 891 (P. C. 81 § 689), among other things, provides that, when such is the fact, the trial judge shall certify that the statement of facts “contains all the material facts, matters and proceedings heretofore occurring in the cause and not already a part of the record therein . . . .” Comparing the certificate with the statute, the infirmity in the former readily appears. It nowhere appears in the certificate that the statement of facts contains all the material facts, matters and proceedings occurring in the cause not already a part of the record therein. Where it does not appear in the certificate to the statement of facts that the statement contains all the material facts *686 not already a part of the record necessary to the consideration of the case, the statement upon motion will be stricken. In the absence of such a certificate, it is presumed that the statement does not include all the material facts. Kirby v. Collins, 6 Wash. 297 , 32 Pac. 1060 ; State ex rel. Miller w. Seattle, 45 Wash. 691 , 89 Pac. 152 . In the case last cited it was said:

“It is neither certified that the statement before us contains all the material matters and proceedings occurring in the cause which are not already a part of the record, nor that it contains such thereof as the parties have agreed to be all that are material therein. The statute makes it the duty of the trial judge to so certify when such are the facts. Bal. Code, § 5060 (P. C. § 677). In the absence of such a certificate it must, therefore, be presumed that the statement does not include all the material facts, and we are thus advised that all the material facts which were before the trial court and which controlled its action are not before us. . . .”

But the appellant claims that, since the only question is the misconduct of the jury, and the statement of facts contains an affidavit by each of the twelve jurors, it shows on its face that it contains all the material facts necessary to determine the question presented. This conclusion, we think, does not necessarily follow. The certificate being insufficient, the court will not look into the proposed statement of facts and attempt to determine from its contents whether it does in fact contain all the material facts and proceedings necessary to a consideration of the point involved. Had the certificate contained a statement that there were embodied in the statement of facts all the material facts, matters and proceedings not already a part of the record which were necessary to a determination of the question involved, a different question would be presented.

The motion to strike must be granted. The judgment will be affirmed.

Cnow, Mount, Fullerton, and Ellis, JJ., concur.