The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-01-06
FAULTS IN THE CODE.
FOrty-Three Of Them Pointed
Out by Supreme Court.
THE LIEN LAWS DEFECTIVE.
Provisions n to Appeals Complicated
and Ambiguous - Provisions a. to
Bank stock Assessment Indefinite.

the constitutional provision directing them
to report to the governor such defects and
omissions in the laws as their experience
may suggest, have submitted to Gov. Ferry
q statement pointing out forty-three such
defects. Following is q condensation of
this important report:
l. There is no statutory provision for an execu.
tive onicer of the supreme court We suggest
that the sheriff Of the county whore the sittings
OF the court are held be made such officer.
2 The constitution of the Code Procedure, Sec
ton i, provide tina: each of the judges of the su.
preme court shall have power to issue writs OF
habeas corpus TO any part OF the state, upon petit
ton by or on behalf of any person held in actual
n0ssody, and may make such writs returnable
before himself, or before the supreme court, or
before any superior court OF the state, or any
Judge thereof. This provision has been found TO
be practically imperative, because OF the lack
OF some further legislation.
s. As construed by this court Code Pro-
ceduse. section l.402, allows an appeal in no
case excepting from a rinsl judgment therein.
In civil actions it is found that this provision
sometimes works an unnecessary hardship.
Generally speaking, we think 1t is safe to say
that justice would more often be done and un-
necessary hardship avoided If appeals were
allowed in all cases of resort to the provisional
remedies treated of in Code Procedure, title G.
AS general rule appeals should only be taken
court, aud should not be allowed piecemeal;
but where such a course, by delaying the action
OF a party looking toward q relief from some
alleged injustice already done, but which is
nnal in its nature, would practically prevent
his having any redress, or only partial and in
SUFFICIENT redress, the right to appeal should De
Immediately available, Notwithstanding the
principal cause of action may not have been de-
termined. We also think that an appeal should
lie from an order setting aside a Judgment in
the manner provided for in Code Procedure,
section 22l. and in Code Procedure, title Il
4. We think 1t worthy OF consideration.
whether the state, in criminal action, should
not have some right of appeal beyond that al
lowed in Code Procedure, section l,4O2
8. Code Procedure, section Laos. provides
that appeals shall be prosecuted within six
months after the rendition of the decision, order
Or judgment complained OF. The difficulty of
knowing what is the rendition" of a decision,
order or judgment creates confusion, and the
section as 1t stands sometimes works hardship.
We recommend that the entry Of the Judgment
be the time from which the period for appealing
should commence TO run, in all cases where
judgment is entered in a cause tried wholly by
jury; and that in all other cases the time to
appeal run from the time OF service of notice of
the entry OF judgment made by the successful
upon the unsuccessful party.
g. Code Procedure. section lap, pro.
vides that the sureties in every bond
on appeal, etc, must possess the quail
hcations required for bail upon arrest
In civil action. that their afidavits OF
qualification must be attached to or lied with
the bond. and they must, i: required, justify in
the same manner as bail upon arrest. Now the
only provision with regard to the justification
OF bail upon arrest in the Code of Procedure is
section 246, which is as follows:
FOR the purpose of Justification, zach Of the
bail must attend before the judge or justice of
the peace at the time and place mentioned in
the notice, and NAV be examined on oath on the
part OF the plaintiff touching his su!ti ciency in
such manner az the judge or justice of the peace
III ais discretion may think proper. The ex.
animation must be red uced to writing and sub
scrioed by the bail, If required by the plaintiff
Other provisions In regard to the justification
precede section DAG. a1d all are plainly inap-
pticaole to the situation In this court. We sug-
gest that approval OF the bond by the judge or
CLERK o. the superior court should be required in
the first instance, and that some provisions
should be made by which, upon q showing of
the insut!icency OF the sureties, under section
l,42l, this court could order the suretles 10
Justify before some officer of the county from
which the cause was appealed, and have the
testimony taken upon such justification trans
United to this court in the shape of depositions.
z. Code Procedure. section l,i15. provides that
in civil actions and proceedings the clerk shall,
before making o, certifying mis- transcript on ap-
peal. require payment by The appellant Of the
legal charges therefor. Nothing is said about
such charges in criminal actions, and we sug-
gest that In criminal appeals, excepting those
which are prosecuted in forma pauperis, there ia
no good reason why the appellant should not
pay the lawful charges as well the appellant
in civil actions
S Code Procedure section 1.I6, has given q
great deal of unnecessary trouble since it was
enacted. II is as follows:
A transcript is copy. certified by the clerk,
- ir,u nrHar and ,I
Tries constituting che judgment roll: OF tho bill
or xceptioEs, II there be any: OF the statement
OF facts, II there be one. OF the notice Of appeal;
OF ali orders anu notices concerning the appeal:
OF the bond Tor appeal; OF the bond for Stay OF
proceedings, il there be one: and of the bond 20
keep in force an injunction or restraining ORDER
II there be one.
The transcript is necessarily copy, certified
by the clerk, OF all such papers and prop
erly snoCld continue TO be part Of the records
OF the lower court, but there seems to Us no
good reason why either the bill OF exceptions or
statement OF facts should come 10 this court by
copy. They are papers made up primarily for
the purpose OF presentation to this court and
can serve no valuable purpose by lying IN dup
licate in the records OF the superior court. The
main objection TO the copying system however,
Is It's extreme cost ThS system OF trying Gases
which now prevails, viz, that OF taking down
the testimony OF witnesses with the aid of n
stenographer, renders statements of facts. which
the facts IN the case to this court, quite volurn-
inous, and the result ia that Iiugants are not
only taxed for the services of the stenog.
rapher in taxing down the testimony, and
transcribing the notes, buttne cost of the notes
l. then almost or quite duplicated Dy the neces-
sity of furnishing a totally unnecessary copy
certified by the tclerk. We recon- mend, as IA
better plan, that the appealing party should re-
Quiye the clerk. by pr8cipe. TO copy as a
transcript such part Of the record OF tho court
below Only as he deems material 20 his appeal;
that the bill of exceptions or statement OF facts
be attacked thereto, and that the respondent
should be at liberty TO require the clerk 10 copy
and certify any portion OF the record omitted by
the appellant which he deems material to the
appeal, to be added to the transcript at his cost
such cost TO be recovered only in case this court
should ind the allegation OF ma,eriality to be
sustained
q Prior to the act OF 1891 this court by rule
permitted the transcript in al cases TO remain
In the Office OF the clerk of the county whence
the appeal was taken. unit! the period SLOWED
for filing briefs had expired The plan worked
well, ana We think gave great satisfaction to al
torneys. But owing 10 the provision requiring
the transcript 20 Do sent up within sixty days
after the notice OF appeal Is given, Code Pro-
cedure. sections I.il--l.il9. this rule had 10 lie
discontinued. We recommend the amendment
OF the statute so that the rule can ne again put
In force.
10 The method OF taking 81 appeal oush; to
be the most simple proceeding contained in the
code Of civil procedure; and there ought To be
no such thing IS the defeat of hearing of an