, 1891-12-12
A MOTION DENIED
TO DISMISS AN APPEAL IN A
CASE
Because the Judge Who fried 1T.
Settled it After Re Had
Eeft office.

E4CAb WHICH,
[Notice-AlI decisions of the supreme
court will appear in The DAILY AND
WEEKLY TRIBUNE.
The Northern Pacific and Puget Sound
Railroad Company plaintiff and appel
Coleman, Clara ]. Coleman, Mary Hutch
inson, William Hutchinson, George T..
Coleman and Clarissa ID. Coleman, adj
ministratrix of the estate of James NJ
Coleman, deceased, defendants and re-
spOndents
peal in this casa, because the judge who
tried the cause settled the statement of
fac4s after he had gone out of office. We
have heretofore decided, in the case of
Faulconer VS.. Warner, End WASH, that an
ex-judge has no authority to settle the
statement OF facts, and we granted a mo-
tlon to strike the statement in that case
for that reason. Here the respondents
have not asked to have the statement
stricken, but to have the appeal dismissed.
1t, of itself, affords no ground for dismiss
ing the appeal, and cannot affect the right
of appellant to have the remainder of the
record here, and to argue upon the merits of
any question which it may present. True,
the striking of a statement may leave no
question in the record for the court to CON
slider and after a statement is stricken, if
the respondent should move to dismiss the
appeal upon that ground, and said motion
should be we'll founded in fact it Wonld be
granted otherwise, if no snch motion was
made by either party, the Judgment would
be affirmed, as was done in the case above
cited. 1t is argued that there is no cues
tion presented by the record in this case
outside of the statement, and that as, after
striking the statement the motion to dis
miss would be but matter Of form, the
motion here made should be treated as
a motion to strike.
The appellant, however disputes the
proposition that there would be no matter
left in the record for the court to pass npon
should the statement be stricken. Now
the question is, will the court in advance
of decision of this motion, look into the
record to determine this matter, and if it is
found that no question would be left, then
grant the motion to dismiss, or ought the
court to treat the motion to dismiss the
appeal as motion to strike the statement?
tits claimed that under the code practice
only matters of substance are looked at,
that it is part of its policy to favor liberal
constructions, and that in this case the
real obj0ection is presented by the motion
to dismiss, and the respondents at most
only mistaken as to the Judgment to which
they are entitled; that tits an attempt
upon the part OF respondents in good faith
to avail themselves Of a legal right, and
that they should not be held literally to
the language Of the motion.
But there is distinction to be recog-
nized between those rights expressly con
ferred by direct legislative enactment
where the intention to confer is thus appa-
rent, and those wherein the right is more
III the nature OF an advantage party may
take by reason Of some defect in the law
or oversight in legislation, such as the
present one, and it seems to us that this is
not case where the rule as to liberal con-
struction can be invoked. Such a rule
oh llyTn To f11sth OoFS,