State ex rel. Hennessey v. Huston

• Decision Date: 02 July 1903
• Citation: 32 Wash. 154,72 P. 1015
• Parties: STATE ex rel. HENNESSY et al. v. HUSTON, Judge.*
• Court: Washington Supreme Court

72 P. 1015

32 Wash. 154

STATE ex rel. HENNESSY et al. v. HUSTON, Judge.*

Supreme Court of Washington

July 2, 1903

Mandamus by the state, on relation of P.J. Hennessy and others against Thad Huston, as judge of the superior court of Pierce county, to compel respondent to certify a proposed statement of facts on appeal from an order denying a motion to vacate a judgment for defendants in a suit by relators against the Tacoma Refining & Smelting Co. Writ awarded.

Fogg & Fogg, for respondent.

HADLEY J.

Original application is made in this court for a writ of mandate directed to the superior court of Pierce county and to Hon Thad Huston, one of the judges thereof.The petition recites substantially: That on or about the 16th day of January 1902, the petitioners commenced an action in said court, in which the Tacoma Smelting & Refining Company, a corporation, and others, were defendants.That at the time of filing their complaint in said action they applied to the respondent, one of the judges of said court, for a temporary restraining order, and that such order was thereupon duly made by respondent in said cause.That on the same date the relators filed in said cause their motion for the appointment of a receiver of the lands and estate of said Tacoma Smelting & Refining Company.That thereafter issues were joined under said complaint and a supplemental complaint by answers and replies.That on the 24th day of February, 1902, said cause came on for hearing before the respondent upon said motion for the appointment of a receiver, and upon said temporary restraining order, and the order to show cause why the same should not be continued in force until the final determination of said action.That at the conclusion of such hearing said matters were by respondent taken under advisement until the 6th day of March, 1902, when said court, through the respondent, announced its decision and entered judgment as follows: 'This cause came on for hearing on this February 24, 1902, upon the order heretofore made on the 16th day of January, 1902, and upon the pleadings and evidence adduced; and, after listening to the evidence adduced by the respective parties and arguments of counsel, the case was taken under advisement until this 6th day of March, A.D. 1902.The court, being well advised in the premises, finds that there is no ground for the appointment of a receiver, or for an injunction, and that there is no equity in the complaint, and that the equities of this case are with the defendants.It is therefore ordered, adjudged, and decreed by this court that plaintiffs' application for receiver and for an injunction is overruled and denied, and that this action be, and same is hereby, dismissed, at plaintiffs' cost.To all of which plaintiffs duly excepted, and their exceptions are allowed.'That no demurrer, motion, or other pleading was at any time served or filed in said cause by any of the defendants therein, except as hereinbefore stated, and that said judgment of dismissal was entered by the respondent of his own motion, without any other or different hearing, opportunity for hearing, or consideration of said cause than as hereinbefore stated.That no trial or opportunity for trial of the issues raised by the pleadings of the respective parties was at any time had.That thereafter, on the 12th day of March, 1902, these relators, as plaintiffs in said cause, served and filed their motion to vacate said judgment.That on March 19, 1902, said motion to vacate came on for hearing before the respondent, and after argument by counsel was taken under advisement by respondent until January 2, 1903, when the same was denied by order entered of that date.That on the 20th day of January, 1903, the relators filed their notice of appeal in said cause.It is further stated that on said 20th day of January, 1903, the relators duly filed their proposed statement of facts, and thereafter the said defendants filed their proposed amendments thereto--first, insisting that the court was without jurisdiction to settle and certify the proposed statement; and, second, that it be amended by striking out the whole thereof.The cause came on for hearing upon application to settle and certify said proposed statement of facts, and the respondent refused to certify the same.The order entered upon the court's refusal to certify the statement contains findings to the effect that all the evidence, papers, matters, and proceedings contained in the proposed statement relate solely and only to matters and proceedings therein alleged to have occurred, and to have been introduced in evidence and considered by the court at the time of the hearing and rendition of the judgment of March 6, 1902; that the proposed statement was not filed or served until more than 10 moths after the rendition of said judgment, and hence, with respect to said judgment, was filed and served too late, and not within the time limited by law; that no evidence of any kind or character was at any time offered, introduced, or considered with respect to the motion to vacate said judgment, or the order thereon entered January 2, 1903, and said order was not made or based on any evidence whatever; that if there had been any evidence offered in support of said motion, or upon which said order of January 2, 1903, was made, the court would be ready and willing to certify a statement of facts embodying the same, but inasmuch as there was no such evidence, or any evidence in that behalf, there is nothing to be certified.

The above are the essential facts shown by the petition, and upon which a peremptory writ of mandate is sought to compel respondent to sign and certify said proposed statement of facts.At the hearing here the affidavit of respondent was submitted to the effect that the journal and judgment entries set out in the petition are correct transcripts of the record; that on the 24th day of January 1902, the cause came on for hearing upon the order made January 16, 1902, and upon the pleadings and the evidence adduced, and after hearing and considering the same respondent decided, as shown by his written opinion, which is a part of the record and made a part of the petition herein, that the facts stated in the bill were not sufficient to entitle plaintiffs to relief and that there was no equity in the bill.In the written opinion it was also directed that the bill be dismissed.Respondent's affidavit further states: That after said decision was handed down the said plaintiffs made no motion for leave to amend their pleadings, and no leave to amend was granted, but that plaintiffs elected to stand upon their complaint and supplemental complaint without amendment.That thereupon the final judgment of March 6, 1902, was entered.That no motion for new trial or for a rehearing was ever made.That after the expiration of the time within which a motion for new trial might have been filed said plaintiffs filed their motion to vacate and set aside the following words of the judgment entry, to wit: 'That this action be, and the same is hereby, dismissed at plaintiffs' costs.'That the motion was not supported by any affidavit or other evidence, and did not purport to raise any issue of fact, but purported to raise an issue of law to the effect that as a matter of law the court had erred in dismissing the bill.That the motion left the entire...