State ex rel. Barry v. Superior Court In and For King County, 25228.

• Decision Date: 19 September 1934
• Docket Number: 25228.
• Citation: 35 P.2d 1095,179 Wash. 55
• Court: Washington Supreme Court
• Parties: STATE ex rel. BARRY et al. v. SUPERIOR COURT IN AND FOR KING COUNTY et al.

35 P.2d 1095

179 Wash. 55

STATE ex rel. BARRY et al. v. SUPERIOR COURT IN AND FOR KING COUNTY et al.

No. 25228.

Supreme Court of Washington

September 19, 1934

Department 1.

Original certiorari proceedings by the State of Washington, on the relation of Winifred M. Barry and others, directed to the Superior Court of the State of Washington in and for King County, Honorable Roscoe R. Smith, Judge thereof.

Writ denied and proceedings dismissed.

George F. Hannan, of Seattle, for petitioners.

Henry S. Noon, of Seattle, for respondents.

MITCHELL, Justice.

This is an original application for a writ of certiorari. In response to a show cause order, the respondent demurs to the petition and has filed a motion to quash, for the reason, among others, that there is a plain, speedy, and adequate remedy by appeal, and 'without waiving demurrer to and motion to quash' has filed a return as though a writ had issued.

It appears that Mary J. Williams died, testate, on March 28 1934, in King county, leaving property in that county. She left no direct descendant, but was survived by her husband Asa D. Williams, and certain brothers, sisters, and nieces to each of estate. The soie she willed a portion of her estate. The sole executor named in the will refused to act and within forty days, under sections 1417 and 1431, Rem. Rev. Stat., the surviving husband requested, in writing, the appointment of Henry S. Noon as administrator with the will annexed. One of the surviving sisters petitioned for the appointment of another sister as administratrix with the will annexed. Both petitions were heard at the same time. The will was admitted and Noon appointed administrator, the order being dated June 5, 1934. Noon duly qualified by filing his oath of office and official bond on June 6, 1934.

The losing party in the superior court filed a written instrument denominated 'Petition to Revoke Letters of Administrator.' The petition, we think, should be treated as a motion for a new trial; indeed, relators, in the proceedings in this court, so consider it. The record does not show when it was filed, nor that it was ever served; but, be that as it may, the motion was denied and an order to that effect entered on June 19, 1934, all parties being present at the time of the hearing and when the order was entered. Thereupon the attorney for the losing heirs dropped out of the case, at least their present sole attorney first appeared for them in the present proceeding which was instituted in this court on July 19, 1934--forty-four days after the order appointing the administrator was entered.

The diligence necessary to maintain this kind of action was not exercised in this case, though, as already shown, present counsel for relators is not to blame. The appointment of an administrator is a final order from which an appeal lies. State ex rel. Kempf v. Superior Court, 151 Wash. 289, 275 P. 694; In re St. Martin's Estate, 175 Wash. 285, 27 P.2d 326.

Rule X, Rules of Pleading, Procedure and Practice, effective April 1, 1931, 159 Wash. lxiv, § 1, provides: 'In civil actions and proceedings an appeal from any final judgment must be taken within thirty days after the day of the entry of such final judgment.'

Whatever may have been said in some of the earlier cases in settling the practice in certiorari proceedings, in the absence of a statute regulating the same, the rule as to the diligence required has heretofore become established, as stated in State ex rel. Clark v. Superior Court, 167 Wash. 481, 10 P.2d 233, 235, as follows: 'We have uniformly held, under the statute, and the rules of this court above cited make no change in that respect, that, where the remedy by appeal would not be adequate, or where no appeal is provided, an application for a writ of review must be made at least within the time for appeal. State ex rel. Tumwater Power & Water Co. v. Superior Court, 56 Wash. 287, 105 P. 815; State ex rel. Jakubowski v. Superior Court, 84 Wash. 663, 147 P. 408; State ex rel. Neal v. Kauffman, 86 Wash. 172, 149 P. 656; State ex rel. Robinson v. Superior Court, 134 Wash. 90, 234 P. 1017.'

The motion for a new trial in this case was wholly ineffectual to prevent the running of time within which certiorari proceedings should be commenced, if such remedy were otherwise proper. The proceeding in the superior court was in the nature of an equitable proceeding, and the motion made was in no way or manner necessary to an appeal or other appellate review of the order appointing the administrator. In the case of Howland v. Day, 125 Wash. 480, 216 P. 864, 868, we said: 'A motion for a new trial is never necessary in an equitable proceeding, or in a case tried to the court without a jury, except in cases of discovery of new material testimony which may change the result, and in some other exceptional cases.'

There was...