Kennett v. Levine, 34089
| Decision Date | 06 December 1956 |
| Docket Number | No. 34089,34089 |
| Citation | 49 Wn.2d 605,304 P.2d 682 |
| Court | Washington Supreme Court |
| Parties | John J. KENNETT, Appellant, v. David LEVINE, Bob Jones, M. B. Mitchell, Charles M. Carroll, Clarence F. Massart, Floyd C. Miller, Paul J. Alexander, J. D. Braman, and Mrs. Harlan H. Edwards, constituting the City Council of the City of Seattle, a municipal corporation, Respondents. |
John J. Kennett, George Kahin, Robert K. Keller, Seattle, for appellant.
A. C. Van Soelen, Arthur Schramm, Seattle, for respondents.
The appellant, John J. Kennett, commenced an action in the superior court for King county, in which proceeding he sought a writ of prohibition directed to the city council of Seattle to desist and refrain, until further order of the court, from conducting a hearing before the city council upon the mayor's request for this removal as a member of the Seattle transit commission, and requiring the respondents to show cause why they should not be permanently restrained.
The respondents appeared generally and interposed (1) a motion to quash the proceedings upon the ground that the court had no jurisdiction over the subject matter of the action, and (2) a demurrer upon the ground that the affidavits in support of the application for the writ did not state facts sufficient to constitute a cause of action.
The court granted the motion to quash, sustained the demurrer, and dismissed the action with prejudice. The appellant has taken all of the necessary procedural steps to perfect his appeal, and this court now has jurisdiction.
This is an ancillary proceeding in which the appellant seeks a permanent writ of supersedeas pending the appeal.
The sole issue presented is whether this court, in the exercise of its discretion, should require that the litigants' status quo be maintained until the appeal can be heard upon its merits before this court.
Art. IV, § 4, of the constitution of the state of Washington, provides in part as follows:
'* * * The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. * * *' (Italics ours.)
In aid of its appellate jurisdiction, this court has inherent power to grant all writs it deems necessary and proper to preserve the fruits of appeal for an appellant in the event such appeal should prove successful. In the exercise of our discretion, we have held that the issue presented by the appeal must be debatable, and that the equities of the case must require that the status quo of the litigants be maintained. Shamley v. City of Olympia, 1955, 47 Wash.2d 124, 286 P.2d 702.
Applying this rule to the instant case, do the pleadings present a debatable question?
Article XXIII, § 1, of the charter of the city of Seattle, provides in part as follows:
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Purser v. Rahm
...appeal, considering the equities of the situation. See Shamley v. Olympia, 47 Wash.2d 124, 286 P.2d 702 (1955); Kennett v. Levine, 49 Wash.2d 605, 304 P.2d 682 (1956). There seems little doubt that the issue presented by this appeal will ultimately require a decision by the Secretary of HHS......
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Shenfield v. City Court of City of Tucson, Pima County
...v. Municipal Court, 216 Cal.App.2d 811, 31 Cal.Rptr. 280 (1963); Collette v. Matejcek, 146 N.W.2d 156 (N.D. 1966); Kennett v. Levine, 49 Wash.2d 605, 304 P.2d 682 (1956). Therefore, it cannot be said that an order of a justice court or magistrate's court is ipso facto immune from review by ......
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Garland v. Tanksley, 37585
...tribunal to grant supersedeas in cases where irreparable injury would otherwise result. In the recent case of Kennett v. Levine, 49 Wash.2d 605, 304 P.2d 682, 684, the court said: 'This is an ancillary proceeding in which the appellant seeks a permanent writ of supersedeas pending the appea......
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Banach v. City of Milwaukee
...declined to issue a stay. For a case similar in result concerning the 'power' issue on an appeal from demurrer, see Kennett v. Levine (1956), 49 Wash.2d 605, 304 P.2d 682.18 (1937), 156 Or. 333, 349, 65 P.2d 1395, 1400, 68 P.2d ...
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Table of Cases
...P.2d 497 (1991): 11.6(2)(b) Kenneth W. Brooks Trust v. Pac. Media, LLC, 111 Wn. App. 393, 44 P.3d 938 (2002): 14.6(5) Kennett v. Levine, 49 Wn.2d 605, 304 P.2d 682 (1956): 8.5, 21.7(2) Kennewick Educ. Ass'n v. Kennewick Sch. Dist. No. 17, 35 Wn. App. 280, 666 P.2d 928 (1983): 11.11 Kershaw ......
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§ 21.7 Stays of Administrative Action Pending Judicial Review
...a stay. See RAP 8.3; Purser v. Rahm, 104 Wn.2d 159, 177, 702 P.2d 1196 (1985), cert. dismissed, 478 U.S. 1029 (1986); Kennett v. Levine, 49 Wn.2d 605, 606-07, 304 P.2d 682 (1956). These standards should apply to judicial stays of most administrative The APA and other statutes regulate the c......
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§ 8.5 Stay By Appellate Court in Civil Case
...were not concerned with deciding the merits of the case, but examined only whether colorable issues were presented. Kennett v. Levine, 49 Wn.2d 605, 607, 304 P.2d 682 (1956) (prerule case; stay imposed to prohibit the Seattle City Council from conducting a proceeding to remove a city transi......