
    [Decided January 5, 1887.]
    NATHAN D. CATON and FREDERICK STANFORD, Partners, etc., v. JOHN B. SWITZLER.
    Appeal — Statement of Facts — Transcript — Notice.—Where, in the transcript, that which purports to be the statement of facts provided for by the Washington Territory appeal act of 1883 does not appear to have been made up with the knowledge of, and has been made without notice to, the appellee, it is not a statement within the appeal act, since that requires notice.
    Appeal from the District Court holding terms at Walla Walla. First District.
    Suit in equity appealed to this court under the appeal act of 1883. Appellee moved to affirm the judgment on the grounds that no statement of facts on appeal had been settled or allowed, and that the evidence in the action had not been certified and required by law and the rules of the court. The statement of facts appearing in the record was signed without any notice to the appellee.
    
      Mr. John B. Allen, and Mr. J). J. Crowley, for the Appellee, and urging the motion.
    Counsel in support of the motion cited McGowan v. Petit, 1 Wash. 514; Coleman v. Yesler, 1 Wash. 591; Mulkey v. McGrew, 2 Wash. 259; Sess. Laws 1883, 59.
    
      Messrs. Caton & Stanford, for the Appellants, contra.
    
   Mr. Chief Justice Greene

delivered the opinion of the court.

This is an equity cause decided upon the merits in the lower court, and brought up here under the appeal act of 1883.

What purports to be a statement of facts is included in the transcript, but it is not such a statement as is contemplated and prescribed by that act, for it does not appear to have been made up with the knowledge of, and it is conceded to have been made without notice to, the appellee. Such being the posture of the case, the motion to affirm the judgment of the District Court is granted.

Hoyt, J., and Turner, J., concurred.  