State ex rel. Tumwater v. Superior Court of Thurston County

• Decision Date: 11 December 1909
• Citation: 105 P. 815,56 Wash. 287
• Court: Washington Supreme Court
• Parties: STATE ex rel. TUMWATER POWER & WATER CO. v. SUPERIOR COURT OF THURSTON COUNTY.

105 P. 815

56 Wash. 287

STATE ex rel. TUMWATER POWER & WATER CO. v. SUPERIOR COURT OF THURSTON COUNTY.

Supreme Court of Washington, En Banc.

December 11, 1909

Application for a writ of review by the State, on the relation of the Tumwater Power & Water Company, against the Superior Court of Thurston County; John R. Mitchell, Judge thereof. Application denied.

CERTIORARI (s 39*)--APPLICATION FOR WRIT--TIME.

While the statute fixes no time in which to apply for a writ of review, it must be applied for within the time fixed for taking an appeal; so that a writ to review the dismissal on May 4th of an answer in intervention in condemnation proceedings will not issue, where it was not applied for within 30 days after entry of the order, as required by 2 Ballinger's Ann. Codes & St. s 5645, in cases of appeal from a final order in condemnation proceedings; and that intervener's appeal from the order was pending for several months from June 16th did not excuse failure to apply for the writ before that date.

[Ed Note.--For other cases, see Certiorari, Cent. Dig. ss 57, 60-63; Dec. Dig. s 39.*]

* For other cases see same topic and section NUMBER in Dec. & Am Digs. 1907 to date, & Reporter Indexes

G. C Israel, Martin L. Pipes, George H. Funk, and Frank C. Owings for relator.

A. J. Falknor and Troy & Sturdevant, for respondent.

MOUNT J.

This is an application for a writ of review. It appears therefrom that the Olympia Light & Power Company brought an action against the Olympia Brewing Company to condemn certain property which was alleged to be necessary for a public use, the title of which property was alleged to be in the brewing company. The relator intervened in that action, and filed an answer therein. The Olympia Light & Power Company filed a demurrer to that answer, which demurrer was sustained by the trial court, and on May 4, 1908, the intervener was dismissed. Forty-three days later, viz., on June 16, 1908, the intervener in that action, the relator here, appealed from the order of dismissal to this court. That appeal was dismissed on October 28, 1909, for the reason that the order was not an appealable order. Olympia Light & Power Company v. Tumwater Power & Water Co., 104 P. 778. Thereafter, on November 11, 1909, this application was filed here for a writ to review the order of May 4, 1908, dismissing the intervener from the condemnation case.

While the statute fixes no time within...