State ex rel. Hamilton v. Superior Court for Cowlitz County
| Decision Date | 07 October 1939 |
| Docket Number | 27716. |
| Citation | 94 P.2d 505,200 Wash. 632 |
| Parties | STATE ex rel. HAMILTON, Atty. Gen., v. SUPERIOR COURT FOR COWLITZ COUNTY. |
| Court | Washington Supreme Court |
Department 1.
Prohibition proceeding by the State, on the relation of G. W. Hamilton Attorney General, against the Superior Court for Cowlitz County, Howard J. Atwell, Judge.
Writ denied.
G. W Hamilton, Atty. Gen., and L. C. Brodbeck, Asst. Atty. Gen for plaintiff.
John F. McCarthy and Edgar P. Reid, both of Kelso, for respondent.
By her deed of September 21, 1938, Mary Downing conveyed to the state of Washington a right of way for highway purposes across her land in Cowlitz county and she received the stipulated consideration of six hundred dollars for that conveyance. In March, 1939, Mrs. Downing instituted an action in the superior court for Cowlitz county against the state of Washington to obtain a decree cancelling the above-described deed, on the ground that she was induced by the fraudulent representations of an official of the state highway department to execute that instrument. She further prayed that she be adjudged the owner of the strip of land in question and that defendant be required to accept her tender of the sum of six hundred dollars, the amount received by plaintiff from defendant as consideration for the challenged conveyance.
On the ground that the action is against the state of Washington and is one in equity to cancel a written instrument for fraud, hence a proceeding in personam and not within the purview of the proviso of the statute (Rem.Rev.Stat. § 886) fixing the venue of actions against the state as the superior court for Thurston county, the state of Washington filed in this court its petition for a writ of prohibition restraining the superior court for Cowlitz county from proceeding further in that action. In response to an alternative writ, respondent filed herein a demurrer to relator's petition, thereby raising for determination the sole question whether an action against the state to cancel a deed for fraud and revest title in plaintiff grantor is an action 'to determine or quiet title to, any real property' within the meaning of the proviso of Rem.Rev.Stat. § 886.
We agree with counsel for the state that an action may not be maintained against the state without its consent; and that, when the state does consent, it may determine in what forum it may be sued.
The constitution (Art. II, § 26, State Constitution) provides that 'The legislature shall direct by law in what manner and in what courts suits may be brought against the state.'
Pursuant to the foregoing constitutional provision the legislature fixed the venue of actions against the state as follows: Laws of 1927, Chap. 216, p. 831,§ 1; Rem.Rev.Stat. § 886; P.C. § 6260.
It will be noted that the statute provides that an action to determine or quiet title to any real property in which the state of Washington is a necessary or proper party defendant is a local action and may be brought in the county where the land is situated. By enactment (Laws of 1854, p. 133, § 13; Laws 1860, p. 7, § 15; Laws of 1869, p. 12, § 48; Laws of 1877, p. 11, § 48; Code 1881, § 47; 2 H.C., § 158; Rem.Rev.Stat. § 204) prior to statute (Laws of 1927, Chap 216, p. 831, § 1, Rem.Rev.Stat. § 886) fixing venue of actions against the state the legislature provided that actions for the recovery of, for the possession of, or for the determination of all questions affecting the title to real property shall be commenced in the county in which the subject of the action or some part...
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...47 Wash. 450, 451–52, 92 P. 267 (1907) ; Ryckman v. Johnson, 190 Wash. 294, 299, 67 P.2d 927 (1937) ; State ex rel. Hamilton v. Superior Court, 200 Wash. 632, 635, 94 P.2d 505 (1939) ; Miles v. Chinto Mining Co., 21 Wash.2d 902, 904, 153 P.2d 856 (1944), adhered to on reh'g, 21 Wash.2d 902,......
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