State v. Glover

• Decision Date: 31 January 1933
• Docket Number: 23861.
• Citation: 18 P.2d 508,171 Wash. 523
• Parties: STATE ex rel. PAINE et al. v. GLOVER, County Auditor, et al.
• Court: Washington Supreme Court

18 P.2d 508

171 Wash. 523

STATE ex rel. PAINE et al. v. GLOVER, County Auditor, et al.

No. 23861.

Supreme Court of Washington

January 31, 1933

Department 2.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

Proceeding by the State, on the relation of Frank C. Paine and another for a writ of mandamus to F. J. Glover, as Auditor of Spokane County, and another. From an order directing the issuance of a peremptory writ, respondents appeal.

Affirmed.

Chas W. Greenough and A. O. Colburn, both of Spokane, for appellants.

Tustin & Chandler, of Spokane, for respondents.

STEINERT J.

The matter involved in this litigation has now been Before this court on three different occasions. Frank C. Paine and Connor Malott originally brought an action in Thurston county against the state of Washington and the commissioner of public lands, to establish, as a lien against certain state land, a certificate of delinquency issued by Spokane county for drainage district assessments. Spokane county was made a defendant, and relief was prayed for against it under its guaranty to pay the certificate in the event that the tax or assessment, for which the certificate was issued, was held to be void. Demurrers to the complaint were interposed by the defendants therein. The joint demurrer of the state and the commissioner of public lands was sustained; that of the county was overruled. The plaintiffs having elected to stand upon their complaint, and, the county having refused to plead further, judgment was entered dismissing the action as to the state and the commissioner of public lands, but awarding recovery against the county in the sum of $3,002.55. On appeal, the judgment was in all respects affirmed. Paine v. State, 156 Wash. 31, 286 P. 89 95. The county contended, on the appeal, that the judgment against it should have been limited in amount to that portion of the assessment that was charged to the state, and that the remainder, represented by the certificate of delinquency, was properly chargeable to, and collectible from, the rest of the lands within the district. Answering that contention, the concluding paragraph of the opinion in that case reads 'The complaint clearly alleges that the amount paid by Paine and Malott for the certificate of delinquency was for unpaid assessments with interest thereon, against the state's land within the drainage district. There is nothing appearing upon the face of the complaint indicating otherwise. The appellant county elected to stand upon its demurrer, which admitted the allegation to be true; therefore, under the guaranty of the county to refund the amount paid if delinquency certificate were declared void, the judgment in favor of appellants Paine and Malott against the county of Spokane should be, and it is, affirmed.'

Thereafter Paine and Malott, as relators, brought this mandamus proceeding against the auditor and treasurer of Spokane county to compel payment of the judgment. Defendants made return to the alternative writ and also answered, pleading that the money paid by the relators for the certificate of delinquency had been deposited by the treasurer in the interest and bond redemption fund of the drainage district in connection with which the certificate of delinquency had been issued; that the bonds issued by the district were held by relators; that the funds so paid in by relators, for the certificate of delinquency, and deposited by the treasurer in the bond redemption fund, had in turn been paid by the treasurer to the relators as the holders of such bonds; in other words, that the relators had received, on account of their bonds, all of the moneys which they had originally paid for the certificate of delinquency. The relators' demurrer to the return and answer of the defendants...