
    [No. 8.
    Decided January 30, 1890.]
    The County of King v. George D. Hill, John Leary, Joseph F. McNaught, George W. Harris, E. P. Ferry, Sutclifee Baxter and G. C. Phinney.
    APPEAL — STATEMENT OE PACTS-NOTICE OP SETTLEMENT — REQUISITES OP CERTIFICATE — PRACTICE.
    On appeal, the written opinion of the trial judge, not purporting to be a finding of facts, will, on motion, be stricken from the transcript.
    Under the appeal act of 1883, allowing six months in which to serve notice of appeal, and thirty days in which to give notice of a settlement of the statement of facts, it is immaterial which of the notices precedes the other.
    Where judges are allowed by statute to exchange courts on request, a judge, who has tried a cause in another district than his own, may certify and settle the statement of facts, after returning to his own district.
    A certificate by the trial judge, that the statement “contains all the material facts in the cause relating to the execution of the bond in suit (except the original bond itself), and the ruling and decision on the question of the execution thereof, and the dismissal of said cause,” is not a sufficient compliance with the provisions of the appeal act of 1883, requiring that the statement shall contain “ the material facts in the cause.”
    The fact that appellees were present with a copy of the proposed statement, when the facts were settled, and offered no amendments, does not estop them from moving to strike out the statement of facts on account of the insufficiency of the judge’s certificate.
    Although the statement of facts has been stricken out, a motion to affirm the judgment should be denied, and the appeal heard upon its merits, where there are several assignments of error.
    
      Error to District Court, King County.
    
    Action .by the County of King against George D. Hill, as treasurer of said county, and his sureties, on his official bond, to recover an alleged deficit in public funds. Judgment for defendant, and plaintiff appeals. In this court defendants move to affirm the judgment of the district court upon the ground that the evidence in the case has not beenjcertified to this court, and no statement of all the material facts in the cause has been certified to by tbe judge before whom tbe action was tried, nor by the judge of tbe court in which the judgment was rendered.
    
      Ronald & Piles, and W. S. Bush, for plaintiff in error.
    The statement that the opinion of the court, including tbe decision, “is not, under tbe provisions of our statute, or any system, proper matter to be made of record,” is incorrect. Code Wash. T., 256, 246, 460, and 466; Bay-lies on New Trials and Appeals, pp. 129-130.
    The statute of 1883 requires the statement of facts to be settled before the judge who tried the cause; and notice for tbe settlement of tbe same must be given within thirty days after tbe rendition of the judgment. Tbe appellant is given six months to give notice of appeal. Tbe act, construed as a whole, gives the appellant the right to perfect his statement of the material facts by giving notice, and a right to appeal at any time within six months. It does not require that the appeal shall be taken before be perfects tbe statement of facts. The same rule of law applies as if the case had been tried before tbe judge of tbe Third judicial district. Tbe act must have a reasonable construction. British Baric Latona v. McAllep, 3 Wash. T. 342.
    The judges having exchanged for the trial of this cause, on account of the disqualification of Judge HakfoRD, Judge Calkins was clothed, under the act of 1883, with power to settle the statement of facts. His jurisdiction to settle outside the district where the trial took place, and where he was acting judicially, is conceded in Hollon Parlcer, petitioner, 131 U. S. 225; and see Marsh v. Wade, 3 Wash. T. 477; Howe v. Jones, 23 N. W. Bep. 378; Seattle, etc., R. R. Go. v. Ah Kow, 2 Wash. T. 39.
    Sections 2137-2138 of the code, so far as they prohibit a judge from settling a statement of facts in chambers, outside tbe district where he tried tbe cause, are modified and amended by tbe act of November 23, 1883. See People v. Durick, 20 Cal. 94; Ex parte Taylor, 13 How. (U. S.) 13.
    Tbe motion to affirm tbe judgment of tbe court below is based on tbe presumption tbat tbe court will strike from tbe record tbe “statement of facts,” and tbat tbe case can not be beard on tbe merits at all. Sucb motions were denied in Swift v. Stine, 3 Wash. T. 519-520.
    
      Struve, Haines & McMicken, and C. H. Hanford,, for defendants in error.
    Tbe opinion of tbe judge of tbe district court should be struck out of tbe record. It is not, under tbe provisions of our statute, or any system, proper matter to be made of record. England v. Gebhardt, 112 U. S. 502; Louisiana, ete. Ins. Go. v. Tweed, 7 Wall, 44; Dillon v. Spokane Gounty, 3 Wash. T. 498.
    No statement of facts, which tbe parties have not agreed to, can be lawfully used in this court, unless it has been prepared and certified in tbe manner prescribed by statute. Zenkner v. N. P. E. R. Go.-, 3 Wash. T. 60; U. S. v. “Lone Fisherman,” 3 Wash. T. 316; Kenyon v. Knipe, 3 Wash. T. 243 ; Gaton v. Switder, 3 Wash. T. 242.
    Tbe statute requires, in explicit terms, tbat tbe statement shall contain all tbe facts in tbe case, or at least all tbe material facts, and tbat it shall be so certified. Tbe statute also requires tbat tbe statement shall be certified, not by the judge of some court other than tbe one in which tbe judgment was rendered, and at some place outside of tbe district over which tbe court in which tbe judgment was rendered has jurisdiction, but by “tbe judge of tbe court below,” tbat is, tbe inferior court from which tbe cause is removed to tbe supreme court. Laws of Wash. T. 1883, p. 59, §§ 3 and 4.
    We especially maintain tbat, in certifying a statement of facts, judicial power must be exercised. Sucb powers can only be lawfully exercised by one who is clothed with judicial authority, and who at the time acts within the boundaries of the district over which he as judge has jurisdiction, and in a case pending in the court over which he as judge at the time presides. Code Wash. T., §§ 21d7-8; Gain v. Libby, 21 N. W. Rep. 739.
    This court having become vested with jurisdiction of the cause, by an appeal having been taken, it must pass upon the merits of the cause and render a final judgment; the judgment should be affirmed for the reason that in the condition of the record that has been brought here, no other disposition of the cause can possibly be made. The evidence has not been preserved or transmitted to this court; if any error to the prejudice of the plaintiff in error taints the findings, decision or judgment of the court, it will not be discoverable by this court. Suydam v. Williamson, 20 How. 427; Powell on Appellate Proceedings, pp. 125-129, £§ 17-21; Prentice v. Stearns, 113 U. S. 435; Bonnifield v. Price, U. S. Sup. Ct. (L. C. P. ed.) tuI. 26, p. 1022.
   The opinion of the court was delivered by

Stiles, J.

This was a motion to strike from the transcript the written opinion of the judge who tried the cause in the court below, and the statement of facts, and to affirm the judgment. The suit was brought upon the bond of defendants in error, Hill and others, executed to the county of King, of which Hill was treasurer. The issues, when made up, were referred to a referee under chap. 18 of the code. The referee heard the cause and reported his findings of fact and conclusions of law, with the testimony taken by him. The judge of the Third district court was disqualified, and the judge of the Fourth district sat to hear the cause, at Seattle, upon the report of the referee. Tiie report of the referee recommended a judgment against .the defendants for a certain sum, which the plaintiff deemed too small and did not cover a period within which it was claimed a liability upon the bond had accrued. Plaintiff, therefore, moved to correct the report in these particulars, and for an enlarged judgment accordingly. Defendants, on the other hand, moved to entirely set aside the findings of fact and conclusions of law of the referee, and for a judgment of dismissal.

The hearing of these motions seems to have involved a hearing of the whole case, and the judge rendered an elaborate opinion in writing giving his reasons for his action, which was filed with the other papers in the case. There were three cases brought by the same plaintiff against the same defendants, and all were heard together; therefore, the opinion includes all three. We think the motion to strike the opinion from the transcript is well taken, as it does not purport to be a finding of facts, or anything but the views of the judge on various points and authorities cited, and is not properly a part of the transcript. The court overruled the exceptions of the plaintiff to the referee’s report and denied its motion; and, on the'other hand, sustained the exceptions of the defendant, set aside the findings and conclusions of the referee, and rendered judgment of dismissal, with costs.

The order and judgment was as follows: “ It is ordered by the court that the findings and conclusions of said referee be and the same are set aside; and it is the decision of the court that there is not sufficient evidence to support the allegations of the plaintiff’s complaint in this action, and that the defendant’s allegations are true, and the judgment should be rendered in favor of the defendants for their costs and disbursements herein. Judgment that plaintiff take nothing by the action and that defendants have judgment for costs; ” and there were no findings of fact or conclusions of law except as they may be found in the order. The plaintiff intending to appeal to this court sought to have a statement of facts settled, under the appeal act of 1888; but the judge who tried the cause had returned to bis own district, and was tben at Ellensburgb, Kittitas county. Notice of tbe settlement of a proposed statement before bim at tbat place, was given to defends ants; and a copy of tbe proposed statement was delivered witb tbe notice. No notice of appeal bad at tbat time been given. At tbe bearing at Ellensburgb tbe defendants were present, and objected to tbe statement, calling attention to tbe fact tbat there was testimony of witnesses wbicb was not included in tbe statement, wbicb consisted only of tbe testimony of witnesses, and a copy of tbe bond sued on; tbe testimony related only to tbe execution and delivery of tbe bond. But defendants did not offer themselves to furnish any matter for tbe statement. The judge certified tbe statement as proposed as follows: Tbat tbe same” (tbe statement) “ contains all tbe material facts in tbe above entitled cause relating to tbe execution of the bond in suit (except tbe original bond itself), and tbe ruling and decision on tbe question of tbe execution thereof, and tbe dismissal of said cause as aforesaid.” Tbe certificate further requested tbe clerk to send the original bond to tbe clerk of this court.

It is alleged tbat no statement of facts could be settled until after notice of appeal; tbat only tbe judge of tbe Third district court could certify to any statement; tbat tbe judge could not certify out of tbe district, and tbat tbe statement is not a statement of all tbe facts, or all tbe material facts, and is not so certified by tbe judge, and therefore it is moved tbat tbe statement be struck out. We cannot sustain either of tbe first three objections. Tbe statute allows six months for notice of an appeal, and only thirty days in wbicb to give notice of a settlement of the statement. In our judgment it is immaterial wbicb of tbe notices precedes tbe other.

When judges are allowed by statute to exchange courts, we must bold that tbe mere return of tbe judge, who tries a cause in another district by request, cannot cut off tbe right of parties under other provisions of the statutes to have the facts of the trial stated; and from this it follows that in this case the judge of the Fourth district could settle and certify the statement at Ellensburgh. The case of Hollon, Parker, petitioner, 131 U. S. 221 (9 Sup. Ct. Rep. 708), is applicable to the last point.

But we think the fourth of defendant’s objections to the statement is without answer, and must prevail. The statute of 1883, § 4, p. 59, makes a liberal provision in this regard. All that it exacts is, that the statement shall contain “the material facts in the cause,” by which means large masses of testimony can be eliminated and the record greatly diminished. But “the material facts” must be there and the judge must certify that they are there. The certificate here does not at all fulfill the requirement, although a word or two would have sufficed. The reason for the failure was, that both the judge and parties were conscious that many other matters were material in the cause beside the execution of the bonds; we gather this from the briefs and arguments of counsel on this motion. Plaintiff ui-ges that as defendants had a copy of the statement proposed, and were present, and proposed no amendments, they are estopped; but we think not, under our practice. The intention of the statute is, that a fair statement shall be presented by either party, or both, to the judge, and his decision controls.

There remains the motion to affirm the judgment. This we shall deny upon the authority of Swift v. Stine, 3 Wash. T. 518 (19 Pac. Rep. 63). The appeal is from the judgment upon several assignments of error, and should be heard upon its merits.

The opinion of the judge and the statement will be stricken from the transcript; the motion to affirm the judgment is denied.

Akdbbs, C. J., and Scott and Dunbab, JJ., concur.

Hoyt, J., not sitting.  