Pattison v. Walker , 2 Wash. 2d 62 ( 1939 )

There can be no question but that the opinions of this court cited in the majority opinion, and others which might be referred to, support the conclusion reached by the majority in holding that the statement of facts should be stricken. Notwithstanding this, in my opinion, our prior opinions should be re-examined and a less rigid rule adopted.

It clearly appears that the official court reporter who took down the testimony at the trial of the case at bar fell ill and was unable to transcribe her notes within the ninety-day period allowed for the filing of a proposed statement of facts. The reporter was an official agent of the court; under the law, a link in the chain of judicial procedure. Through no fault of appellants or of anyone else, the judicial machinery was unable to function. Appellants then did the only thing possible — they filed, as a proposed statement of facts, a narrative account of the evidence based upon available data. It does not appear that this narrative statement was not prepared in entire good faith. Upon some question arising as to its sufficiency, however, the statement was made that the official reporter was then able to transcribe her notes, and, this having been accomplished, a complete statement of facts was prepared and filed.

In the cases of State v. Sholund, 153 Wn. 398,279 P. 591, and State v. Thompson, 154 Wn. 663, 283 P. 182, cited in the opinion of the majority, it did not appear that the appellants had, during the ninety-day period, and while the official reporter was unable to transcribe her notes, filed a narrative statement of facts. In my opinion, this fact renders those cases inapposite.

In the case at bar, appellants might have insisted that their narrative statement of facts be certified, possibly after amendment; but to save all possible question, appellants procured a complete verbatim transcript of the testimony. This was evidence of their good faith and a distinct advantage to this court, as well as to the parties, as both appellants and respondent could rest assured that, on appeal, the facts would be fully presented. In my opinion, the complete transcript of the testimony should be considered as an amended or supplemented statement of facts and, as such, properly before us. If such course be not followed, then it seems to me that appellants may still present their narrative statement of facts to the trial court for certification.

For the reasons stated, I dissent from the conclusion reached by the majority.

GERAGHTY and ROBINSON, JJ., concur with BEALS, J.

ON REHEARING. [En Banc. March 14, 1940.]