State ex rel. Hand v. Superior Court of Grays Harbor County

• Decision Date: 02 August 1937
• Docket Number: 26585.
• Parties: STATE ex rel. HAND et al. v. SUPERIOR COURT OF GRAYS HARBOR COUNTY.
• Court: Washington Supreme Court

71 P.2d 24

191 Wash. 98

STATE ex rel. HAND et al. v. SUPERIOR COURT OF GRAYS HARBOR COUNTY.

No. 26585.

Supreme Court of Washington, En Banc.

August 2, 1937

Original certiorari proceeding by the State, on the relation of Samuel W. C. Hand and others, against the Superior Court of Grays Harbor County, the Honorable William E. Campbell, Judge, to review an order denying a motion for change of venue.

Order reversed and cause remanded to the Superior Court, with directions.

G. W Hamilton and L. C. Brodbeck, both of Olympia and Bushnell & Beardsley, of Prosser, for plaintiff.

Morgan & Morgan, of Hoquiam, and L. B. Sulgrove, of Tacoma, for defendant.

HOLCOMB Justice.

Relators petition for a writ of certiorari to review an order of the superior court for Grays Harbor county, in an action against them, commenced in the above court by Hubert Foy, on behalf of himself and others, for damages for malicious prosecution and false imprisonment, denying them a change of venue to Yakima county where Hand, with whom the other relators joined, is and was a resident at the time of the commencement of the principal action. Beardsley is a resident of Benton county and Johnson of Whitman county.

On or about March 23, 1936, Hubert Foy, for himself and others on assigned claims, commenced an action in the superior court for Grays Harbor county against Samuel W. C. Hand, Chas. H Johnson, Ray Haynes, Geo. O. Beardsley, Joseph H. Smith, John Doe, Richard Roe, the American Bonding Company of Baltimore, and the United Pacific Casualty Insurance Company, as defendants, by causing defendants Hand, Johnson, and Beardsley, alone, to be served with a summons and complaint for the recovery of damages claimed to have been suffered by the plaintiffs because of the alleged false arrest and imprisonment of plaintiffs by defendants.

Thereafter, on or about April 6, 1936, Hand made and had entered his motion for a change of place of trial, or venue, from the superior court of Grays Harbor county to the superior court for Yakima county, upon the ground and for the reason that the action was improperly commenced in Grays Harbor county, in that the residence of defendant Hand was in Yakima county, which motion was supported by his affidavit as to his residence. At the same time Hand filed a demurrer to the complaint and his affidavit of merits showing that he had a good and meritorious defense to the action. These affidavits, as the record discloses, were not denied in any respect.

On or about April 10, 1936, the motion for change of venue was heard by and submitted to the superior court for Grays Harbor county, and the court, after consideration, expressed his intention of granting the motion. Thereupon counsel for plaintiffs in the cause asked and were granted leave to amend the complaint therein. On or about April 11, 1936, plaintiffs in the cause served and filed their amended complaint, and defendant Hand again presented his motion for a change of venue and his demurrer thereto. Defendants Johnson and Beardsley, having by that time been served with a summons and complaint, entered their appearance by demurrer and joined the motion for a change of venue of defendant Hand.

On May 15, 1936, the cause again came on for hearing in the same court upon the motions for change of venue and the court again indicated his intention of sustaining the motions and granting the change of venue. Thereupon plaintiffs again asked for and were granted leave to amend their complaint which was on May 23, 1936, served and filed in the cause to which motions for change of venue and demurrers were again interposed. Thereafter, the cause was again submitted to the trial court upon the motions for a change of venue.

On July 8, 1936, the trial court made and entered an opinion as follows:

'In this case the defendant Samuel W. C. Hand moves for a change of venue to Yakima County.

'The court previously ruled that the defendant was entitled to the change of venue, but gave the plaintiffs an opportunity to file an amended complaint. The amended complaint has been filed, and the court is still of the opinion that the change of venue should be granted.

'The attorney for the plaintiffs has requested of the court that if he grants the motion for change of venue that the plaintiffs be given sufficient time to apply to the Supreme Court for a writ of prohibition. This the court will do.

'Respectfully submitted,

'Wm. E. Campbell, Judge.'

When that opinion was rendered, plaintiffs again requested the trial court to withhold the transfer of the case pending their petition to this court for a writ of prohibition to prevent such transfer. The transfer of the cause was by the trial court accordingly stayed. On July 24, 1936, plaintiffs in the cause filed in this court their application for a writ of prohibition to restrain the transfer of the cause to Yakima county as ordered by the lower court therein. That petition came on regularly for hearing Before this court on September 25, 1936, when it was denied, leaving the trial court free to proceed further according to his sound discretion, although no reason was given in the order of denial.

Thereafter relators Hand, Johnson, and Beardsley petitioned for a writ of mandate in this court to require the lower court to transfer to the superior court for Yakima county the action pending against them in Grays Harbor county by Hubert Foy et al. That petition was heard by this court on December 18, 1936, and denied for the reason that the answer to the show cause order by the respondent court disclosed:

'That the question of the sufficiency of the showing made by the defendants to justify and require a change of venue, in view of the contents of and showing made by the plaintiff's third amended complaint, is still undecided and undisposed of by this court, and the defendants have not as yet renewed their motion for a change of venue in this court nor otherwise plead to the plaintiff's third amended complaint and the showing therein made.

'That if the defendants still desire to have the venue changed, and will present the matter to this court, the court will rule upon it and will then determine whether, upon the record, the venue should be changed.'

Thereafter the motions for change of venue were again directed to the third amended complaint heard by the trial court on January 8, 1937, and an order entered denying the change of venue.

The trial judge seemed to consider that the third amended complaint states a local cause of action under the provisions of Rem.Rev.Stat. § 205, which provides that an action against a public officer or person appointed to execute his duties, for an act done by him in virtue of his office, shall be tried in the county where the cause or some part thereof arose.

The trial court was correct in its conclusion that the other complaints against these parties did not state a cause of action under that section.

The applicable portions of the third amended complaint are:

'That the defendant, Samuel W. C. Hand, was at all times mentioned in this complaint a public officer of the State of Washington, to-wit: a major in the National Guard in the State of Washington, duly and regularly commissioned by the Governor of said state, and that on the 23rd day of April, 1929, a bond of $1000.00 executed by the American Bonding Company and the said Samuel W. C. Hand, to secure the faithful performance of his duties as an officer of the State of Washington, who had been and then was duly appointed as such by the then Governor of the State of Washington and as a public officer of the State with certain definite, fixed and legally established duties and obligations provided by the laws of the State of Washington and pertaining to the office held by him. * * *

'That on or about the 11th day of July, 1935, the defendants, (except the corporate defendants) being then in Grays Harbor County, and then and there acting in concert and then and there acting and assuming to act as public officers of the State of Washington, being then and there in uniform and armed and equipped as such public officers and acting in concert as public officers and pursuant to a previous understanding, arrangement and agreement made between themselves, and that at all times assuming to act as public officers by virtue of their public official position and in virtue of their several public official positions, but being in truth and in fact public officers, but acting unlawfully and wrognfully and in excess of legal or lawful right, and without legal right so to do, inflicted certain damage and injury upon the plaintiff in this action, which is more particularly set out and described in the following paragraph; that the said defendants at all times assumed to act as public officers and specially appointed to execute certain duties; that all such acts were done without any legal right and contrary to the laws of the State of Washington and in violation of the oath of office taken by each of said individual defendants.

'That on or about the 11th day of July, 1935, the defendants, acting in concert and by previous understanding and as an armed body of public military officers, but at all times acting in excess of any actual legal authority or right to do the acts complained of and not acting under the authority of, or at the direction of, any civilian peace or police officers of Grays Harbor County, and wholly upon their own initiative as public military officers, and without any legal standing or authority as peace officers of Grays Harbor County, and pursuant to a previous understanding, arrangement, agreement, and conspiracy, seized and set upon the plaintiff, Hubert Foy. * * *'

It will be observed that the allegations seeking to create a...