State ex rel. Burkhard v. Superior Court for Clark County

• Citation: 120 P.2d 477,11 Wn.2d 600
• Decision Date: 12 December 1941
• Docket Number: 28511.
• Parties: STATE ex rel. BURKHARD v. SUPERIOR COURT FOR CLARK COUNTY.
• Court: United States State Supreme Court of Washington

120 P.2d 477

11 Wn.2d 600

STATE ex rel. BURKHARD v. SUPERIOR COURT FOR CLARK COUNTY.

No. 28511.

Supreme Court of Washington

December 12, 1941

Department 2.

Original mandamus action by the State of Washington, on the relation of Louis Burkhard, against the Superior Court of the State of Washington for the County of Clark, the Honorable Howard J Atwell, Judge thereof, to require the Superior Court to set aside an order and judgment dismissing an appeal, taken by relator from an order of the joint board of the Department of Labor and Industries. In open court, counsel stipulated that the petition might be considered as one for a writ of certiorari.

Writ denied.

BLAKE J., dissenting.

Schaefer & Hall, of Vancouver, and Smith Troy and Edward S. Franklin both of Olympia, for relator.

Smith Troy and T. H. Little, both of Olympia (Melvin D. Lurie, of Olympia, of counsel), for Department of Labor and Industries amici curiae.

Green & Landye, of Portland, Or., for State Federation of Labor, amici curiae.

Todd, Holman, Sprague & Allen, of Seattle (Thomas Todd, of Seattle, of counsel), for respondent.

SIMPSON Justice.

This is an original mandamus action initiated by the relator for a writ of mandate requiring the superior court of Clark county to set aside an order and judgment dismissing an appeal, taken by a workman, from an order of the joint board of the department of labor and industries. In open court, however, counsel stipulated that the petition may be considered as one for a writ of certiorari. We shall consider it as such.

As disclosed by the record, the facts are these: During the month of December, 1936, relator, an employee of the Crown Zellerbach Corporation, was living and working in Clallam County, Washington. In January, 1939, he filed a claim for an injury alleged to have occurred in December, 1936. February 1, 1939, the claim was rejected by the supervisor on the ground that it had not been presented within the time limited by law. March 23, 1939, relator petitioned the joint board for a rehearing which was granted subject to proof that the statute of limitations had not operated against the claim.

November 12, 1940, after a hearing, the joint board entered its order to the effect that the claim had been timely presented, but sustained the order of the supervisor for the reason that relator had not suffered injuries in the course of his employment, and that his condition was not the result of the alleged injury.

December 10, 1940, relator served and filed his notice of appeal to the superior court of Clark county, Washington.

On December 13, the attorney general entered a general appearance in the case. December 16, 1940, the employer served its motion to dismiss the appeal upon the ground that the relator had not appealed to the superior court of the county of his residence, as required by Rem.Rev.Stat. § 7697. Thereafter, counsel stipulated that at all times since the filing of the claim relator was a resident of the state of Oregon.

July 10, 1941, the superior court entered a judgment dismissing the relator's appeal from the order of the joint board.

Application for a writ of mandate was filed in this court July 25, 1941. An alternative writ was issued by this court and the matter is here upon the application and the respondent's answer and return thereto. Respondent has moved to quash the show cause order upon the ground that relator has a plain, speedy and adequate remedy by appeal.

The motion to quash must be granted.

The judgment of dismissal was a final order from which an appeal would lie to this court. That judgment disposed of the case to all intents and purposes. The remedy of relator is set out in Rem.Rev.Stat. § 7697, as follows: 'Appeal shall lie from judgment of the superior court as in other civil cases.'

This court has consistently held that writs of mandamus or certiorari will not be considered if the aggrieved party has a plain, speedy and adequate remedy by appeal.

In State ex rel. Young v. Denney, 34 Wash. 56, 74 P. 1021, this court held: 'It is urged that an appeal will not afford a sufficiently speedy and adequate remedy, for which reason review by certiorari is sought. It has been the uniform rule of this court to deny the writ of certiorari and the other extraordinary writs of mandamus and prohibition when it appeared that there was an adequate remedy by appeal. It has also been determined that the delays and annoyances incident to an appeal do not affect the adequacy thereof.'

Again in State ex rel. Miller v. Superior Court, 40 Wash. 555, 82 P. 877, 878, 2 L.R.A.,N.S., 395, 111 Am.St.Rep. 925, this court said: ' We again announce the rule that the adequacy of the remedy by appeal or...