Smith v. Ormsby

• Decision Date: 20 December 1898
• Citation: 55 P. 570,20 Wash. 396
• Parties: SMITH v. ORMSBY et al.
• Court: Washington Supreme Court

55 P. 570

20 Wash. 396

SMITH v. ORMSBY et al.

Supreme Court of Washington

December 20, 1898

Appeal from superior court, Skagit county; J. P. Houser, Judge.

Proceeding by James Haddock Smith for writ of mandate to Norris Ormsby and another. Writ granted, and defendants appeal. Affirmed.

J Henry Smith, for appellants.

Chambers & Smith, for respondent.

GORDON J.

This proceeding was initiated in the superior court of Skagit county, and the object is to compel appellants, as mayor and clerk, respectively, of the town of Woolley, a municipal corporation of the fourth class in said county, to issue a warrant of said town in payment of a judgment which one John A. Moore, respondent's assignor had previously recovered against the town. Upon the return of an order to show cause the appellants appeared, and moved to quash the proceedings, which motion was denied, and thereafter their demurrer was overruled, and upon issue joined by an answer subsequently filed the court proceeded to hear and determine the cause upon its merits, rendering judgment in respondent's favor. The appeal is from that judgment.

The first assignment of error is that the court was without jurisdiction to issue the order to show cause, because at the time the order was issued no action had been commenced; and in support of this assignment counsel for appellants cite and rely upon section 4869 of 2 Ballinger's Ann. Codes & St which provides that 'civil actions * * * shall be commenced by the service of a summons * * * or by filing a complaint. * * *' But we think that section does not apply, for the reason that this was a special proceeding instituted under authority of chapter 65 of the Session Laws of 1895, entitled 'An act regulating special proceedings of a civil nature.' Section 17 of that chapter, relating to the issuance of the writ of mandate, provides that it 'must be issued upon affidavit on the application of the party beneficially interested.' That chapter does not contemplate that a complaint shall be filed in a proceeding of this character, nor that a summons shall issue as is required in ordinary civil actions. This objection therefore was properly overruled.

There are other formal assignments, relating to questions of procedure, not affecting the merits, and which do not require extended consideration. We think the court proceeded within its jurisdiction in passing to a consideration of the merits of the cause. The answer affirmatively set up that the contract upon...