ANDERSON v. TAYLOR, 152 Wn. 532 (1929)

278 P. 412

AXEL ANDERSON, Respondent, v. GARFIELD TAYLOR, et al., Defendants, GARFIELD TAYLOR, Appellant.

No. 21795. Department One.The Supreme Court of Washington.
June 6, 1929.

[1] APPEAL AND ERROR (193) — BOND — TIME FOR FILING — DISMISSAL. An appeal must be dismissed where the bond on appeal was not filed within the time required by Rem. Comp. Stat., § 1721.

[2] SAME (336) — RECORD — CONCLUSIVENESS. Recitals in the record as to the time within which an appeal bond was filed can not be contradicted by appellant by showing the time of mailing the bond without showing when it was actually received by the clerk.

Appeal from a judgment of the superior court for Mason county, Wright, J., entered September 29, 1928, upon findings in favor of the plaintiff, in an action on contract, tried to the court. Appeal dismissed.

F.L. Morgan, for appellant.

J.W. Graham, for respondent.

PER CURIAM

Respondent opens his brief with several motions to strike, and to dismiss on the record as presented here, one of which, unfortunately for appellant, must be granted.

Page 533

[1] The notice of appeal from the entire judgment entered on September 29, 1928, was dated October 4, 1928, and filed in the office of the clerk of the lower court on October 6, 1928. The bond on appeal was executed October 11, 1928, and filed in the office of the clerk of the lower court on October 13, 1928.

The bond was filed too late under the provisions of Rem. Comp. Stat., § 1721.

[2] Appellant cannot be heard to contradict the recitals of his own record on appeal as to attempting to mail the bond within the time required by law. The attempted showing, however, does not show that the bond was actually received by the clerk within the statutory time.

The case is therefore ruled by our decisions in Watson v. Dumas, 125 Wn. 574, 216 P. 848 (a very parallel case) an Glesin v. Glesin, 125 Wn. 339, 216 P. 353.

The late rules of court, relating to appellate procedure, Rule X, 140 Wn. xlii (Rem. 1927 Sup., § 308-10) have made no change therein.

The appeal is therefore dismissed.

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