State ex rel. Beffa v. Superior Court for Whatcom County, 27936.
| Decision Date | 14 March 1940 |
| Docket Number | 27936. |
| Citation | 100 P.2d 6,3 Wn.2d 184 |
| Parties | STATE ex rel. BEFFA v. SUPERIOR COURT FOR WHATCOM COUNTY. |
| Court | Washington Supreme Court |
Department 2.
Original proceeding by the State, on the relation of Lester Beffa, for a writ of mandate directing the Superior Court for Whatcom County, Hobart S. Dawson, Judge, to change the venue of a divorce action against relator.
Application for peremptory writ denied.
B. F. Jacobs, of Tacoma, for relator.
Harley W. Covalt, of Bellingham, for respondent.
Relator filed in this court an affidavit and application for an alternative writ of mandate directing respondent, a judge of the superior court for Whatcom county, to change the venue of a divorce action pending in that court to the superior court for Pierce county, or else to show cause why he should not do so. Upon the preliminary showing made on the application, the Chief Justice signed an alternative writ, presented by relator's counsel, directing respondent forthwith to grant relator's motion for such change of venue, or else to show cause on a day specified in the writ why he had failed in that respect. Respondent was duly served with the writ, together with a copy of the application therefor, and with copies of certain exhibits attached thereto. Respondent, however, has made no appearance nor filed any return in this proceeding. Relator's application was heard ex parte on the day set, which was a regular motion day in this court, and thereafter the cause was assigned for examination of the record and for opinion.
The facts, as disclosed by the record Before us, are as follows On December 8, 1939, relator's wife, June Beffa hereinafter designated as plaintiff, instituted in Whatcom county an action for divorce, from relator, on the ground of cruelty. Relator appeared, as defendant, in that action and moved for a change of venue to Pierce county, on the ground of convenience of witnesses. The motion was heard by respondent judge of the superior court on January 9, 1940, on the affidavit of relator and the resisting affidavit of plaintiff wife. The affidavit filed by relator is included in the record Before us, but that of plaintiff is not. At the conclusion of that hearing, the matter was taken under advisement by respondent with permission to the parties to submit, within one week, additional proofs and briefs in the cause. Within the week allowed, relator filed the affidavits of two witnesses, relator's mother and plaintiff's father, both of whom resided in Pierce county. The additional affidavits were also considered by respondent. At the same time, relator filed, in the cause, his answer specifically denying the material allegations of the complaint.
On January 17, 1940, respondent judge wrote a letter to relator's counsel at Tacoma, and stated therein that the motion for a change of venue 'will be denied.' As expressed in the letter, the court's reasons for its intended ruling were, that plaintiff's answering affidavit (which is not in the record Before us) named two witnesses on whose testimony plaintiff intended to rely, gave their residence as in Whatcom county, and sufficiently set out their testimony; that relator's original affidavit did not give the names of the witnesses upon whom he intended to rely, nor did it state the nature of their testimony; that, taking into consideration, however the additional affidavits filed by relator, it did not appear that the witnesses for the respective parties were unevenly balanced in number; and that in the exercise of its discretion the court could not say that the convenience of witnesses, or the ends of justice, would be subserved by a change of venue. However, so far as the present record discloses, no order either denying or granting relator's motion was entered by the court.
At that stage of the matter, relator instituted this proceeding for the purpose, as alleged in his application, of preventing respondent from denying his motion and setting the cause for trial in Whatcom county.
At the outset, we repeat what we have often declared, and what is the general rule, namely, that judicial discretion cannot be controlled by a writ of mandamus, and that such writ will not issue to compel the superior court to decide a matter in any particular way. State ex rel. McDonald v. Steiner, 44 Wash. 150, 87 P. 66; In re Clerf, 55 Wash. 465, 104 P. 622; State ex rel. Murphy v. Superior Court, 73 Wash. 507, 131 P. 1136; State ex rel. Luketa v. Jurey, 108 Wash. 44, 182 P. 932; State ex rel. Spokane v. Superior Court, 150 Wash. 13, 272 P. 60; 38 C.J. p. 606, § 84; 18 R.C.L. p. 295, § 229; High's Extraordinary Legal Remedies, 3d Ed., §§ 149, 152; 2 Spelling, Injunction and Other Extraordinary Remedies, 2d Ed., § 1394.
An exception to that rule, or, rather, a limitation upon it, recognized by many courts, is that the writ will lie to prevent an abuse of discretion, or to correct arbitrary action which does not amount to the exercise of discretion. 38 C.J. p. 608, § 85.
Both the rule and its exception have been recognized by this court in cases involving applications for change of venue to meet the convenience of witnesses.
Illustrating the general rule is the case of State ex rel. Shook v Superior Court, 141 Wash. 651, 252 P. 103, an en banc decision. In that case, it appears that an action to recover damages for personal injuries was commenced in the county of defendant's residence. Plaintiff filed, in the superior court wherein the action was pending, a motion to transfer the trial of the cause to the county where the accident had occurred. The motion was based on the grounds of convenience of witnesses and promotion of the ends of justice. The matter was presented to the superior court on the affidavits filed by the respective parties. There being a conflict in the proofs, the court denied the motion. Plaintiff thereupon filed in this court an application for a writ of mandate to compel the superior court...
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