State v. Corgiat

• Decision Date: 16 July 1908
• Citation: 96 P. 689,50 Wash. 95
• Parties: STATE ex rel. CICORIA v. CORGIAT et al.
• Court: Washington Supreme Court

96 P. 689

50 Wash. 95

STATE ex rel. CICORIA v. CORGIAT et al.

Supreme Court of Washington

July 16, 1908

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Mandamus by the state, on the relation of John Cicoria, against John Corgiat and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Vince H. Faben and Walter A. Keene, for appellants.

McBurney & Cummings, for respondent.

RUDKIN J.

This is an appeal by the Joseph Mazzini Society and others from a judgment in mandamus proceedings, by which the appellants were commanded to restore the respondent to his rights and privileges as a member in good standing of the appellant society. The Joseph Mazzini Society is a fraternal benefit association organized under the laws of this state. Each member, on admission to the society, must pay an admission fee varying from $5 to $50 according to age, and monthly dues of $1 per month thereafter. The by-laws also provide for special assessments. In return, each member of the society receives a sick benefit of $10 per week for a period of not to exceed six months during illness or other physical disability. A further allowance of $10 per month may be made, in the discretion of the society, after the expiration of the six-month period. The society also expends the sum of $75 for the burial of each of its members. The respondent was a member of the society in good standing for several years prior to the 9th day of June, 1907. On that day he was expelled from the society, without notice or opportunity to be heard, for the alleged publication of an article affecting the president of the society. The following are the assignments of error discussed in the appellants' brief: (1) Error in denying the motion to quash the alternative writ; (2) error in denying the motion for nonsuit; and (3) error in entering judgment without findings of fact or conclusions of law. The motion to quash was based on two grounds: First, because the proceeding was instituted in the name of the real party in interest, instead of in the name of the state on the relation of the party beneficially interested; and, second, because the proceeding was commenced by summons and complaint, and not by motion and affidavit. Section 5738, Ballinger's Ann. Codes & St. (Pierce's Code, § 1393), provides that 'the party prosecuting a special proceeding may be known as the plaintiff and the adverse party as the defendant.' Under this section, it would seem that special proceedings such as certiorari, mandamus, and prohibition should be prosecuted in the name of the real party in interest, but the practice of prosecuting such proceedings in the name of the state on the relation of the party beneficially interested was sanctioned by this court in State ex rel. v. Pacific Brewing, etc., Co., 21 Wash. 451, 58 P. 584, 47 L. R. A. 208. The question is one of little moment here, for the court required the respondent to amend his complaint to conform to the contention of the appellants, and this practice was approved by the court in the case cited. The objection that the proceeding was commenced by summons and complaint, rather than by motion and affidavit, is untenable. In discussing this question in Clark County v. Brazee, 1 Wash. T. 200, the court said: 'We consider that the difficult learning of the old writs of mandamus and prohibition is rendered mainly obsolete by the practice act; that under it the essential idea of an action is that a remedy be asked for by a plain statement of the facts which create a right to it; and that judgment go according to that remedy when found due; and that this simplicity of statement and conformity of judgment obtains as well when the demand is that the defendant be compelled to do or abstain from doing something, as when it is that plaintiff recover a sum of money on a note. This case may be stated substantially thus: After some preliminary irregularity, the plaintiff and defendant found themselves face to face in court. The plaintiff making claim that the defendant be constrained in his action, in a defined legal mode, and alleging the facts justifying it, the defendant insisted that the plaintiff had not called his proceeding by the right name, had taken unnecessary or unusual steps by the way, that the plaintiff should be required to go out of court and come back again by a more technical route. But he made no defense of insufficient notice, none of venue, none touching the substantial justice of the demand, and confined his defense so far as merits were...