Russell v. Marenakos Logging Co.
| Decision Date | 11 April 1963 |
| Docket Number | No. 36360,36360 |
| Citation | 61 Wn.2d 761,380 P.2d 744 |
| Court | Washington Supreme Court |
| Parties | Oscar RUSSELL and Amy Russell, husband and wife, Plaintiffs, v. MARENAKOS LOGGING COMPANY, Inc., and Donald R. Keene and Sandra Rae Keene, husband and wife, Defendants and Relators. The Superior Court of the State of Washingington for King County, Solie M. Ringold, Judge, Respondent. |
Hull, Armstrong & Vander Stoep, Chehalis, for plaintiffs.
Sterbick, Manza, Moceri & Sterbick, Tacoma, for respondent.
This is a review on a writ of certiorari of an order granting a change of venue.
June 23, 1961 a collision occurred in Lewis County between two motor vehicles: one owned and driven by Oscar Russell, and the other owned by Marenakos Logging Company, Incorporated, and operated by its employee, Donald R. Keene. The logging company's principal place of business and its registered office is in King County.
Russell and wife (residents of Pierce County) commenced this action in King County against the logging Company and Keene and his wife.
The defendants moved for a change of venue to Lewis County on two grounds: (1) that the statute (RCW 4.12.020(3) 1 required that the action be tried in Lewis County; and (2) that the convenience of witnesses and the ends of justice would be forwarded by a change of venue to Lewis County (RCW 4.12.030). 2 This statute is held to apply to all causes of action regardless of whether they are local or transitory. Cugini v. Apex Mercury Mining Co. (1946), 24 Wash.2d 401, 409, 165 P.2d 82, 86.
The plaintiff opposed the motion, but asked if there was to be any change of venue that it be to Pierce County for the convenience of witnesses. The plaintiff filed an affidavit on the issue of convenience of witnesses.
The King County Superior Court entered an order granting a change of venue from King to Pierce County for the convenience of witnesses.
The defendants have brought this order here for review on a writ of certiorari.
After a departmental hearing, the court directed a hearing en banc in order to clarify to some extent the 'how,' 'when,' and 'why' of the review of orders of the superior courts relating to venue in what would ordinarily be considered transitory actions. This seems particularly appropriate at this time because 17 March 1963 is the effective date for Rule on Appeal 57, as amended, which governs 'PROCEDURE FOR PETITIONS FOR WRITS OF REVIEW, CERTIORARI, MANDAMUS AND PROHIBITION.' This attempted clarification does not purport to cover all of our venue cases in any of the categories indicated.
The 'how' of the review of orders relating to venue presents no problem; it should be by writ of certiorari, as this court should have before it the same record on which the superior court reached its conclusion that a change of venue should or should not be granted.
We have, in the past, reviewed such orders on an application for a writ of mandamus to compel the superior court to grant a change of venue 3 or to compel it to proceed with a trial of a case after it had granted a change of venue. 4 We have also reviewed such orders on an application for a writ of prohibition to prevent the superior court from proceeding with the trial of a case, after refusing to grant a change of venue. 5 However, for the reasons stated in State ex rel. Antonsen v. Superior Court (1948), 29 Wash.2d 725, 189 P.2d 219, we do not regard mandamus or prohibition as appropriate remedies in the event it is deemed necessary to have this court review an order granting or refusing to grant a change of venue. See also State ex rel. Verd v. Superior Court (1948), 31 Wash.2d 625, 198 P.2d 663.
The defendants, seeking to review the King County Superior Court's order granting a change of venue, followed the proper procedure in making application for a writ of certiorari.
The 'when' and 'why' present a more difficult problem. We are in accord with the view that cases should not be brought to this court piecemeal; that the review of an order relating to venue is frequently a delaying tactic and that, except in rare instances, 6 the mills of justice grind with equal fineness in every county of the state.
On the other hand we recognize that plaintiffs should not be allowed to select forums indiscriminately, and that the legislature has decreed that the defendant has a right to have an action against him commenced in the county of his residence (RCW 4.12.025) except under specific circumstances governed by other statutes.
For reasons 'important to the legislature and not to the courts' (to quote Judge Mitchell in State ex rel. McWhorter v. Superior Court (1920), 112 Wash. 574, 577, 192 P. 903), the legislature, by the mandatory terms of certain statutes, has either made what was formerly a transitory cause of action 'local' or, at least, has designated the county or counties in which it should be brought.
The courts (inferior, superior or supreme) cannot ignore statutory or contractual rights as they relate to venue. Cases relating to venue and involving a claimed violation of a statutory right, 7 or in which a statutory right had been claimed erroneously, 8 together with cases raising pertinent issues of law, 9 should be considered by this court on an application for certiorari.
We recognize, too, that a trial court must exercise its discretion on the issue of venue with reference (1) to whether an impartial trial can be had; (2) to the convenience of witnesses; and (3) to whether the ends of justice would be forwarded. Where a superior court has exercised its discretion, this court will review only on a showing of manifest abuse of discretion. 10 Consequently, a writ will not be issued by the Chief Justice under Rule on Appeal 57(f) except on a prima facie showing of manifest abuse of discretion. The cases show very few situations which have been considered to be such an abuse; but there have been some, 11 and we will not close the door to the review of cases where the convenience of witnesses or the forwarding of the ends of justice have been ignored.
In the instant case, had there been no other grounds for the review sought than the convenience of witnesses or the forwarding of the ends of justice, the defendants would have been denied the writ, or the writ, if issued, would have been quashed because no one could say, on the basis of the affidavits on which the King County Superior Court acted, that it had manifestly abused its discretion in transferring the case to Pierce County for trial.
We find no merit in the contention that RCW 4.12.020(3) limits the venue to King or Lewis, Counties. The superior court of either county, if the action had been commenced therein, could then give consideration to a motion for a change of venue under RCW 4.12.030 (see note 2) which we have already pointed out applies to all causes of action whether local or transitory. This the Superior Court of King County did. There is no reason why that court should not, on a proper showing, transfer the case for trial to some other county for any of the reasons set forth in RCW 4.12.030.
The superior court of the county to which the action was transferred would then exercise 'over the same the like jurisdiction as if it had been originally commenced therein.' RCW 4.12.090. North Bend Lumber Co. v. Seattle (1928), 147 Wash. 330, 266 P. 156; State ex rel. Howell v. Superior Court (1914), 82 Wash. 356, 144 P. 291.
However, the defendants claim that they have a statutory right to have the case tried in Lewis County; and, on the basis of a claimed denial of a statutory right, the application for a writ of certiorari was properly granted. (See cases in notes 7, 8, and 9 in addenda.)
The defendants rely on the wording of RCW 4.12.020(3), which we have set out in note 1.
Clearly the plaintiff, in an action for damages arising from a motor vehicle accident, has the 'option of suing either in the county in which the cause of action or some part thereof arose [i. e., Lewis County],' or 'in the county in which' some one of the defendants resides (i. e., King, that being the residence of the logging company (see RCW 4.12.025)). The defendants argue that the option given to the plaintiff relates only to the place where he commences the action, but it must, in any event, be tried in the county where the accident occurred. RCW 4.12.020(3) literally construed furnishes a basis for the argument. However, the legislature not only did a useless but a silly thing, if it gave a plaintiff an option to sue in the county where the cause of action arose or in the county where some one of the defendants resides, if it must in any event be tried in the former. This could not be the legislative intent; the right to sue a defendant in the county of his residence includes the right to have the case tried there, unless a change of venue is granted as provided in RCW 4.12.030 (see note 2).
The plaintiffs brought this action in King County; and, having exercised the option given them by RCW 4.12.020(3), that statute has served its purpose and has no further bearing on the case. The defendants had no statutory right to have the case transferred to Lewis County for trial. Their right was to ask for a change of venue under RCW 4.12.030, which they did.
The King County Superior Court did not abuse its discretion in denying the application for a change in venue to Lewis County and in ordering a change of venue to Pierce County for the reasons assigned; and the order granting that change is affirmed.
The plaintiffs are entitled to recover costs.
1
'(1) For the recovery of a penalty or forfeiture imposed by statute;
'(2) Against a public officer, or person specially appointed to execute his duties,...
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...County, 149 Wn.2d 29, 37-38, 65 P.3d 1194 (2003). We review a venue decision only for abuse of discretion. Russell v. Marenakos Logging Co., 61 Wn.2d 761, 765, 380 P.2d 744 (1963); West v. Osborne, 108 Wn. App. 764, 770, 34 P.3d 816, review denied, 145 Wn.2d 1012 (2001). A trial court abuse......
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