CASES DETERMINED IN THE SUPREME COURT OF WASHINGTON [No. 14662. Department One. April 3, 1918.] THE STATE OF WASHINGTON, on the Relation of Ina Hoffman Snook, Plaintiff, v. JOHN S. JUREY, APPEAL Judge etc., Respondent.1 RECORD-STATEMENT OF FACTS-CERTIFICATION-ALL THE MATERIAL FACTS. A judge cannot be compelled to certify a statement of facts as containing all the material facts, when such is not the case, although no amendments were proposed, under Rem. Code, § 389, providing that if no amendments are proposed the statement shall be deemed agreed to; in view of Id., § 391, requiring the judge to certify that a statement contains all the material facts "when such is the fact." - SAME STATEMENT OF FACTS SUFFICIENCY RIGHT TO AMEND. The trial judge is not justified in striking out, in effect, a proposed statement of facts by refusing to certify it without allowing an opportunity for amendment, where it was not made in bad faith and included considerable detail covering 70 typewritten pages, although it did not contain all the evidence material to the issue involved in the appeal. Application filed in the supreme court January 29, 1918, for a writ of mandamus to compel the superior court for King county, Jurey, J., to certify a statement of facts. Denied. Tucker & Hyland and Herbert E. Snook, for relator. Roy E. Campbell and Donworth & Todd, for respondent. 'Reported in 171 Pac. 1014. Opinion Per PARKER, J. [101 Wash. PARKER, J.-The relator, Ina Hoffman Snook, seeks an order and mandate from this court requiring the defendant, John S. Jurey, as judge of the superior court of King county, to certify a statement of facts as proposed by her in an action tried and prosecuted to final judgment upon the merits in that court, Judge Jurey presiding, from which judgment she has appealed to this court. The action in which the relator seeks to have settled and certified the statement of facts in question was commenced and prosecuted in the superior court for King county by her, as plaintiff, against H. B. Kennedy and eight others, including Carl J. Smith, as defendants. The main purpose on the part of relator in prosecuting that action does not appear in the record before us. It appears, however, that there was in some manner incidentally involved therein the question of the amount of compensation Carl J. Smith was entitled to for services rendered by him as attorney for the relator, as executrix of the last will and testament of Josephine E. Kennedy, deceased. On August 1, 1917, a judgment for such services was rendered in that action in favor of Carl J. Smith and against Ina Hoffman Snook, as executrix of the last will and testament of Josephine Kennedy, deceased, and against the estate of Josephine Kennedy, in the sum of $6,000. She appealed from that judgment to this court, and thereafter caused to be prepared, filed and served upon Carl J. Smith and the other defendants in that action her proposed statement of facts. This statement was proposed as a statement of all the material facts occurring in the cause relating to the question of attorney's fees claimed by Carl J. Smith, as was evidenced by the proposed certificate attached thereto to be signed by the judge, reading in part as follows: Apr. 1918] Opinion Per PARKER, J. "I do further certify that said statement of facts contains all of the material facts, matters and proceedings heretofore occurring in said cause in the matter of attorney fees and not already a part of the record herein; and that the same contains all the facts, matters and proceedings, and all the evidence and testimony introduced upon the trial of said cause in the matter of attorney fees." Thereafter, within the ten days prescribed by Rem. Code, $389, for proposing amendments to proposed statements of fact, Smith moved the court to compel appellant, this relator, to file a complete statement of facts, or in the alternative, to strike her proposed statement of facts, and also objected to the signing of the statement of facts as proposed; that is, objected to its being signed as a statement of all the facts. This motion and objection was based upon the ground that the proposed statement did not contain all of the facts occurring in the cause relating to the matter of the attorney's fees in question. The judge denied the motion, both as to compelling her to prepare a more complete statement and as to striking the proposed statement, but he did not then sign the proposed statement as either a partial or full statement of the facts. Thereafter relator caused to be served upon Smith a notice that she would apply to the judge to certify the statement as proposed by her. The matter came on to be heard, when Smith renewed his objection to the signing of the statement as proposed, upon the ground that it did not contain all of the facts occurring in the cause relating to the matter of the attorney's fees in question. The judge, in effect, sustained this motion, refusing to certify the statement as proposed, but did sign a certificate thereto reading as follows: "I, John S. Jurey, one of the judges of the above. entitled court, sitting in Department No. 5 thereof, and the judge before whom the above entitled cause Opinion Per PARKER, J. [101 Wash. was tried, do hereby certify that the matters and proceedings contained in the foregoing statement of facts are matters and proceedings occurring in said cause and the same are hereby made a part of the record herein. "Done in open court, counsel for plaintiff and defendant being present, and counsel for plaintiff objecting to the form of this certificate, this 25th day of January, 1918. Exception allowed to plaintiff. "John S. Jurey, Judge." A copy of the proposed statement as certified by the judge is before us attached to the application for the writ in this proceeding. It contains seventy ordinary pages of typewriting, and it appears upon its face to cover in considerable detail and quite fully the question of attorney's fees for services rendered by Smith to the estate of Josephine E. Kennedy and relator as executrix thereof, though we cannot tell from the face of the statement just how far it may be deficient as a statement of all the facts occurring in the cause relating to that question. In his return and answer in this proceeding, the judge states in part as follows: "That the said proposed statement of facts, as on file and of record in said cause, a copy of which is attached to the application for the alternative writ of mandate herein, does not contain all of the material facts, matters and proceedings heretofore occurring in said cause, but contains only a part of the material facts, matters and proceedings occurring therein respecting the attorney's fees of the said Carl J. Smith as aforesaid. "That, at the trial of said cause, the said Carl J. Smith, H. B. Kennedy, and P. S. Norton, testified at great length concerning the actual services performed by the said Carl J. Smith as attorney for the executrix of the estate of Josephine E. Kennedy, deceased, and for the estate of Josephine E. Kennedy, which testimony was relevant and material upon the issue of the amount of attorney's fees which should be allowed the Apr. 1918] Opinion Per PARKER, J. said Carl J. Smith for the services aforesaid; that the evidence given by the above mentioned witnesses is not contained in the proposed statement of facts on file and of record in said cause, nor is it any part of the record therein; that to require affiant to certify that the said proposed statement of facts on file in said cause contains all of the material facts, matters and proceedings heretofore occurring in said cause in the matter of said attorney's fees and not already a part of the record herein, and all the evidence and testimony introduced upon the trial of said cause in the matter of said attorney's fees, would be requiring affiant as a judge of the superior court of King county to certify to something affiant and said court knows not to be true, but false and misleading. "Furthermore, affiant states that, at the trial of said cause, as is shown by the agreement of counsel made in open court and as set forth on pages 8 and 9 of the proposed statement of facts, all of the testimony in the above entitled cause was to be considered by the court in fixing and determining the value of the services or amount of the attorney's fees of the said respondent, Carl J. Smith; that all of the testimony as aforesaid was thereby made relevant and material thereto." There is nothing in the record before us indicating that, at or prior to the signing of the statement as above indicated, counsel for relator was by the judge given any opportunity to furnish such additions thereto as would make it a statement of all the facts occurring in the cause relating to the attorney's fees in question. We think we may assume from the record and the statements of counsel at the hearing in this court that no such opportunity was by the judge given to counsel for relator. The first question for our consideration is, Was it the duty of the judge to certify the statement as proposed; that is, to certify it as a statement of all of the facts occurring in the cause relating to the attorney's |