State ex rel. Amende v. City of Bremerton
| Decision Date | 02 May 1949 |
| Docket Number | 30777. |
| Citation | 205 P.2d 1212,33 Wn.2d 321 |
| Court | Washington Supreme Court |
| Parties | STATE ex rel. AMENDE v. CITY OF BREMERTON et al. |
Department 1
Proceeding in mandamus by the state of Washington on the relation of Ralph Amende against the City of Bremerton and another, to require defendants to pay into local improvement district No 42 of defendant city sum allegedly due relator as owner of local improvement district bonds. From a peremptory writ of mandate, defendants appeal.
Appeal dismissed.
Appeal from grant of peremptory writ of mandamus issued in accordance with conclusions of law but without entry of a formal judgment directing issuance of writ must be dismissed since case was still pending Before Superior Court and there was no final judgment or order from which an appeal could be taken.
Costs would not be allowed on dismissal of appeal from grant of peremptory writ of mandamus issued without entry of a formal judgment directing writ to issue from which an appeal could be taken, since respondent was responsible for defective record Before Supreme Court.
Appeal from Superior Court, Kitsap County; H. G. Sutton, judge.
Oluf Johnsen and Merrill Wallace, both of Bremerton, for appellants.
Ralph Purvis and James B. Sanchez, both of Bremerton, for respondent.
This proceeding was instituted Before the superior court, by way of an application for a writ of mandate, under the title 'The State of Washington, on the Relation of Ralph Amende, Relator, vs. The City of Bremerton and John Doe Nutter, City Treasurer, Defendants.' Relator sought a writ of mandate, directed to the defendants, requiring them to pay into local improvement district No 42, of defendant city, certain sums which relator alleged he was entitled to receive as owner of local improvement district bonds issued by the city of Charleston, which, it was stated in relator's affidavit filed in support of his application for the writ, was subsequently merged with defendant, the city of Bremerton.
An alternative writ of mandamus having been issued, defendants filed a demurrer to the relator's affidavit, filed in support of his application for the writ, based upon four grounds, two of which were, first, that the affidavit failed to state facts sufficient to constitute a cause of action, and, second, that the proceeding had not been commenced within the time limited by law. The transcript does not disclose that this demurrer was ever ruled upon by the superior court.
The transcript contains an amended return, filed by defendants, alleging facts which the trial court evidently assumed amounted to a denial of any right on the part of relator to the relief which he asked. For reasons which will later appear, we express no opinion upon the sufficiency of the allegations in defendants' return, nor as to those contained in relator's affidavit.
The proceeding came on regularly for trial Before the superior court, evidence was taken, which is Before us by way of a statement of facts, the trial resulting in findings of fact in favor of the relator, and the court then entering conclusions of law to the effect that relator was entitled to a writ of mandate in accordance with his affidavit, filed in support of his application for the alternative writ. No judgment appears in the transcript, but, on the same day that the findings and conclusions were entered, the superior court signed a peremptory writ of mandate in accordance with the conclusions of law.
The transcript discloses a motion for a new trial, made by defendants, but contains nothing which shows that this motion was ever passed upon by the court. The transcript then contains a notice of appeal by defendants from 'each and every part of that certain judgment and writ of mandate and findings of fact and conclusions of law made and entered herein by the court on the 1st day of June 1948,' which continues with a further description of the writ.
In their brief, appellants make four assignments of error, three of them based upon findings made by the court, without identifying the particular findings containing the matter upon which appellants assign error, and the other assignment reading as follows: 'The court erred in holding that the relator had sufficient interest in the outcome to bring this action and in directing the defendants to pay any sums whatever from District No. 42 to the relators.'
Pursuant to the statutes of this state, an application for a writ of mandate 'has in it all the elements of a civil action.' State ex rel. Brown v. McQuade, 36 Wash. 579, 79 P. 207, 208.
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Amende v. City of Bremerton, 31293.
... ... judgment had been entered by the trial court in support of ... the writ of mandate. State [36 Wn.2d 337] ex ... rel. Amende v. City of Bremerton, Wash., 205 P.2d 1212, ... 1215. In our opinion we said, among other things: ... ...
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State ex rel. Ryder v. City of Pasco
...should be tried before the court and appropriate judgment entered upon findings drawn from the evidence. State ex rel. Amende v. City of Bremerton, 33 Wash.2d 321, 205 P.2d 1212 (1949). A trial court should admit evidence when an order to show cause why a writ of mandamus should not issue i......
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Peterson v. Department of Ecology, 45471
...An application for a writ of mandamus has all the elements of a civil action. Chief Seattle Properties; State ex rel. Amende v. Bremerton, 33 Wash.2d 321, 205 P.2d 1212 (1949). If issues of fact are raised, they may be tried before the court or a jury, and an appropriate judgment may be ent......
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State ex rel. Close v. Meehan, 33670
...fact are raised, they may be tried before the court and an appropriate judgment entered upon the findings. State ex rel. Amende v. City of Bremerton, 33 Wash.2d 321, 205 P.2d 1212. We are satisfied, from the record, that if the proposed ordinance, amending Section 1 of Ordinance No. C8500, ......