State ex rel. Gamble v. Superior Court for King County

• Decision Date: 16 April 1937
• Docket Number: 26618.
• Parties: STATE ex rel. GAMBLE v. SUPERIOR COURT FOR KING COUNTY.
• Court: Washington Supreme Court

66 P.2d 1135

190 Wash. 127

STATE ex rel. GAMBLE v. SUPERIOR COURT FOR KING COUNTY.

No. 26618.

Supreme Court of Washington

April 16, 1937

Original proceeding for writ of certiorari by the State, on the relation of D. S. Gamble, against the Superior Court for King County for review of an order of the Superior Court for King County denying the relator a change of venue from King County to Okanogan County.

Order reversed, with direction.

Meier &amp Meagher, of Seattle, for relator.

Revelle Revelle & Kells, of Seattle, for respondent.

MILLARD Justice.

On September 9, 1931, Henry H. Shufeldt, a nonresident recovered a judgment in the Superior Court for King County against John E. Savage and wife. That judgment still remains unsatisfied. On October 31, 1936, Shufeldt caused a writ of garnishment to be issued by the clerk of the Superior Court for King County, directed to D. S. Gamble, a resident of Brewster, in Okanogan County, which writ was served in Okanogan County, on Gamble, November 23, 1936. Gamble, the garnishee defendant, who did not appear by counsel, filed an answer of no funds or effects December 21, 1936. On January 26, 1937, one of the attorneys for Shufeldt made an affidavit controverting Gamble's answer to the writ of garnishment. At the same time he prepared a note for the trial docket giving notice that the cause would be called up for setting for February 6, 1937. On January 26, 1937, and February 6, 1937, Gamble was in Nova Scotia, Can. The papers were mailed to his Brewster address January 26, 1937, but, according to the affiadvits of counsel, were not received by Gamble, who was still in Nova Scotia, prior to February 6, 1937, the date fixed for the setting of the cause for trial. On February 11, 1937, the papers were received in Seattle, on which date Gamble's attorney filed a motion for a change of vanue from King County to Okanogan County, of which county Gamble is a resident. After hearing thereon, February 23, 1937, the motion was denied by a formal order entered February 25, 1937.

In this court, by original proceeding in certiorari, D. S. Gamble seeks review of the order of the Superior Court for King County denying to the relator a change of venue from King County to Okanogan County, the county of relator's residence.

We have consistently held that, where a party has a right, independent of the merits of the issues pending, to a trial in a particular place, an extraordinary legal remedy, such as certiorari, mandamus, or prohibition, is the proper method of procedure to test that right in this court.

'While it may in general terms be referred to as a privilege, the claim for a change of venue, when once asserted, no question of fact being involved, and no discretion of the court invoked, is more than a privilege; it is a right. It has been so held whenever and wherever this court has been called upon to pass upon the question. [Citing cases.]

'It would seem, if the statute grants a right the does not depend upon the merit of the case, but is independent of the merit of the case, that a litigant should not be put to the hazard, delay, and expense of a trial upon the merits as a prerequisite to the assertion of the right. In such cases the court is called upon to deal with something more than 'simply a law of procedure and practice,' as was held by Judge Dunbar, and Properly so, considering the record in the case of State ex rel. Townsend Gas & El. L. Co. v. Superior Court, 20 Wash. 502, 55 P. 933. It is a right made equivalent to the right to fix the venue of a local action under the statute, and, when asserted, should not be thrust aside as an incident or an error, to be heard upon an appeal from a judgment on the merits. The term 'speedy and adequate,' when applied to remedies, means, or ought to mean, a remedy adequate and timely to review the particular error relied on, and not merely a remedy which depends upon a proper determination of the issue as defined by the pleadings, and such questions of practice and procedure as may arise in bringing the case to issue, and trying out the facts.

'Wherefore it may be said, where there is a right to a trial in a particular place, which right is independent of the issue as tendered by the complaint, an adequate remedy means a trial in the first instance by a court having jurisdiction to hear and determine the merits.

'To rule otherwise would bring us to a holding that, although the right to a change depended in no way upon a controverted fact of residence, the defendant would have to meet the delay and expense of a trial, and possibly suffer a judgment (if he have clever counsel, he would stand mute and make no defense to the merits), which we would be willing to sustain, if we were free to do so. Before we could even consider the merit of the case, we would have to decide the question of venue or the question of jurisdiction, and do that which ought to have been done in the first place--remand, with directions to change the venue and retry the case; and for the reason that the court did not have jurisdiction. If we would have to so hold on appeal, why should we not say so now; the record being Before us in the same form...