State ex rel. Schmidt v. Nevins, 25270.

• Decision Date: 17 January 1935
• Docket Number: 25270.
• Citation: 39 P.2d 990,180 Wash. 356
• Parties: STATE ex rel. SCHMIDT v. NEVINS, Superior Judge.
• Court: Washington Supreme Court

39 P.2d 990

180 Wash. 356

STATE ex rel. SCHMIDT v. NEVINS, Superior Judge.

No. 25270.

Supreme Court of Washington

January 17, 1935

Department 1.

Application by the State, on the relation of August Schmidt, for a writ of mandamus against W. M. Nevins, Judge of the Superior Court for Lincoln County, directing respondent to grant a motion for a change of venue on the ground of convenience of witnesses.

Application denied.

Connelly & Kerley, or Spokane, for petitioner.

Pettijohn & McCallum, of Davenport, for defendant.

BLAKE Justice.

While crossing Third avenue at Cedar street, in the city of Spokane, relator was struck by an automobile alleged to have been driven by George W. Schultz. Relator brought an action against Schultz and wife in the superior court of Spokane county. Upon making their appearance in the case, Schultz and wife, claiming to be residents of Lincoln county, moved for change of venue to that county. The motion was granted.

Thereafter relator interposed a motion for change of venue from Lincoln to Spokane county, on the ground of convenience of witnesses. The motion having been denied, relator here seeks a writ of mandamus directing the judge of the superior court of Lincoln county to grant the motion.

Long ago this court held that it would not, upon application for an extraordinary writ, review a ruling of a trial court made in the exercise of discretionary power, where the remedy by appeal is adequate. State ex rel. Miller v. Superior Court, 40 Wash. 555, 82 P. 877, 2 L. R. A. (N. S.) 395, 111 Am. St Rep. 925; State ex rel. Martin v. Superior Court, 97 Wash. 358, 166 P. 630, L. R. A. 1917F, 905. The rule has been repeatedly invoked and applied in cases where it has been sought to review the ruling of a trial court on a motion for change of venue on the ground of convenience of witnesses. State ex rel. Schlosberg v. Superior Court, 106 Wash. 320, 179 P. 865; State ex rel. Shook v. Superior Court, 141 Wash. 651, 252 P. 103; Leopold v Livermore, 115 Wash. 481, 197 P. 778. Running through these decisions, however, is the thought, expressed in the early case of State ex rel. Port Blakely Mill Co. v Superior Court, 9 Wash. 673, 38 P. 155, that, in case of arbitrary or capricious action on the part of the trial court, this court would review the ruling upon application for an extraordinary writ. Upon this theory we have granted writs of mandamus in at least two cases, where trial courts have denied motions for change of venue on the ground of convenience of witnesses. State ex rel. Ross v. Superior Court, 132 Wash. 102, 231 P. 453; State ex rel. Merritt v. Superior Court, 147 Wash. 690, 267 P. 503.

In the latter case, the affidavits in support and in resistance of the motions for change of venue are set out in the opinion. The affidavits for and against the motion in the instant case are, in all essential features, the same as the affidavits there set out. The decision of the instant case might very well be rested upon that decision. But respondent here confronts us with the case of State ex rel. Shook v. Superior Court, supra, where, on an almost identical showing, an application for a writ of mandamus was denied. The apparent conflict in the two cases leads us to modify, in a degree, the holding in the Merritt Case.

Where discretion, soundly exercised, leaves off and arbitrary or capricious conduct begins, is difficult to say. Essentially it must be determined from the record made in each case. To illustrate: A resident of Asotin county, driving alone,...