, 1891-11-03
ENOS---W WILCOX.
The Judgment Of the Spokane
Court Affirmed.
A Statement of Facts Settled and
Gertified Out OF Time Upon a
Notice Unauthorized
by the Law.

WEEKLY TRIBUNE.
John Enos, respondent, VS.. Turner J. Viii
cox and Mary ]. Wilcox, appellants:
The respondent moves thecourt to strike
the statement of facts filed herein from the
record, and to affirm the judgment Of the
court below, because: First, said state
ment Of facts was settled and signed out of
time, upon notice given out of time, and
without authority of law and, second, be-
cause said statement is not certified as a
statement of facts by any officer authori-
zed to certify the same. The judgment ap-
pealed from was rendered on January 8,
1891, and the notice of appeal was given on
July Z, 1891, and was therefore in time; but
the notice upon which this statement was.
settled was not given until July 6, 1891, and
the statement itself was not settled, OF
brought before the Judge for settlement,
until after the latter date. AS our statute
requires the notice for the settling of
statement Of facts to be given to the oppo-
site party, or his attorney, within thirty
days after the decision, order, or Judgment
to be appealed from was. made or rendered .
and that said notice shall specify a date,
not less than ten, nor more than thirty
days from the day of service of the motion,
at which application will be made to the
court, or judge, to settle the statement, it
follows that this statement of facts was set
tied and certified. out of time, upon a notice
unauthorized by law, and must, therefore,
be treated as mere nullity irrespective of
the other objection to its validity urged by
counsel for respondent See laws Of Wash
ington, 1891, sec. 81, %. 374
Respondents second objection to the
statement is equally as fatal as the first
10 A+r,1 4 I.
81. M. Kinnaird, ex-judge, Superior Court"
In Faulconer ". Warner, II Pac. r. 274,
this court held that one who has ceased to
hold the office of judge, is unauthorized by
law to certify statement of facts The
statement Of facts in this case is therefore
without authenticity and wholly invalid
for this reason also But Ihelearned coun-
sci for appellants challenges the authority
of this court to strike the statement of
facts from the record even if it be invalid.
but, at the same time, he comedies that the
court may disregard the statement if it is
not properly authenticated. This conces.
sion, it would seenli reduces the objection
to one OF nomenclature merely. To strike
out a part of a record is simply to refuse to
consider that part in the determination of
the matter under consideration, or in other
words, to disregard 1T. And to disregard a
portion of the record is, in effect, to Strike
it out. That the name by which the pro-
, oeeuiliss nay " hIloWni ~ y q ne ne eouse-
he tba U,Il of w -
has always been.the practice OF this court
to entertain motions to strike out obiec-
tiouable portions of the record, and we see
no substantial reason for deviating from
- nc s1|UelnellU Oh
p+ !; n a. - ~ IN q - III III 49,
iants that even although the statement of
facts should not be considered by the court
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