State v. Kay

• Decision Date: 29 October 1931
• Docket Number: 23466.
• Citation: 164 Wash. 685,4 P.2d 498
• Parties: STATE ex rel. WILSON v. KAY, Superior Court Judge.
• Court: Washington Supreme Court

4 P.2d 498

164 Wash. 685

STATE ex rel. WILSON v. KAY, Superior Court Judge.

No. 23466.

Supreme Court of Washington

October 29, 1931

Department 1.

Original application by the State, on the relation of John Ivan Wilson, for a writ of certiorari against Hon. Kazis Kay Judge of the Superior Court for King County.

Disposition in accordance with opinion.

Albert E. Kaye, of Seattle, for relator.

Leo W Stewart, of Seattle, for respondent.

TOLMAN C.J.

Relator duly filed his petition in this court seeking the issuance of a writ of certiorari to review certain proceedings in the superior court for King county.

The petition and supporting affidavit show that, on April 8 1931, an action was commenced in the superior court for King county by Gertrude Eaton against one John Ivan Wilson for the recovery of damages resulting from alleged malpractice by said Wilson in his profession as a dentist; that an answer was duly filed and issues were joined, and the case was regularly noted for trial and assigned to be tried Before the late Judge Gilliam, one of the judges of the superior court for King county; that a trial of the issues was had Before Judge Gilliam, and, after all of the evidence had been introduced and the cause had been argued, on Friday, August 28, 1931, Judge Gilliam, in open court, orally stated that he would find for the plaintiff and render judgment in her favor for the sum of $250 and costs. A minute entry was made of such oral pronouncement; but, Before any findings of fact and conclusions of law were presented to the trial judge for signature, he was taken ill and died; and thereafter the respondent, Kazis Kay, was appointed by the Governor of this state to fill the position left vacant by the death of Judge Gilliam, and the respondent, Kay, thereafter duly qualified and became in law the successor to Judge Gilliam.

After certain attempts to have the presiding judge of the superior court for King county take action, the matter came on for hearing Before Judge Kay on September 22, 1931, and he was asked to sign plaintiff's proposed findings of fact and conclusions of law in the case. To any such action counsel for defendant in the cause objected, upon the ground that he had heard none of the evidence nor the arguments of counsel, had no knowledge of the facts shown by the evidence, and therefore had no jurisdiction to make and enter findings of fact and conclusions of law in the case. This objection was overruled, and Judge Kay proceeded immediately to, and did, sign findings of fact and conclusions of law as proposed by the attorney for the plaintiff in the cause; and thereupon entered a final judgment in the cause in accordance with the findings of fact and conclusions of law so made and entered by him. To this petition the respondent has entered a motion to quash and a demurrer.

On the merits, if we shall reach the merits, there seems to be but little to be said. The principal and puzzling question here presented is, Will the extraordinary writ of certiorari issue under the conditions shown, or will the relator be left to pursue his remedy by appeal?

While not so drastic in character as prohibition or mandamus, still certiorari is an extraordinary remedy, and its issuance, while discretionary, to a considerable extent (more so perhaps than either prohibition or mandamus) must be granded from abuse, otherwise the regular procedure of review by appeal will be encroached upon to the confusion of the practice and practitioners and to the overwhelming of this court.

In 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, where the writ of prohibition was involved, the former decisions of this court were reviewed, and the rule was laid down that an answer to the question, 'Has the relator an adequate remedy by appeal?' was decisive.

In State ex rel. Barnes v. Superior Court, 96 Wash. 581, 165 P. 493, the same rule was apparently applied to a writ of certiorari, though by reason of the holding that the complaining party had a statutory right to make application for an additional bond, etc., which would accord full relief without either appeal or an extraordinary writ, the force of the decision as an authority here is but doubtful at the best.

In State ex rel. Fent v. Smith, 123 Wash. 564, 212 P. 1055, the rule was applied to a case involving the review of the modification of a decree of divorce.

In State ex rel. City of Kent v. Superior Court, 109 Wash. 336, 186 P. 851, it was contended that the remedy by appeal was inadequate because the time for performance of the contract involved would expire Before an appeal couid be heard; but this court held that, since there was a clause in the contract providing for extending the time for the completion of the work for good cause shown, the remedy by appeal was adequate. State ex rel. Stevens v. Paul, 134 Wash. 415, 235 P. 960; State ex rel. Potter v. Superior Court, 135 Wash. 344, 237 P. 717; State ex rel. Paul Chin v. Superior Court, 139 Wash. 449, 247 P. 738; State ex rel. Walker v. Superior Court, 148 Wash. 610, 270 P. 126; State ex rel. Nelms v. Superior Court, 149 Wash. 50, 270 P. 128, all involve the issuance of the writ of prohibition, and are not helpful here.

State ex rel. Miller v. Bell, 157 Wash. 279, 289 P. 25, involves both prohibition and certiorari; and, moreover, it was there sought to review proceedings in a criminal case; so we find nothing there of present help.

While we may have other cases bearing upon the subject, we have contented ourselves with reviewing only those cited by the respondent.

The statute, Rem. Comp. Stat. § 1002, seems to vest discretion in the court to grant the writ of certiorari where it is made to appear that an inferior tribunal has (1) exceeded its jurisdiction; (2) acted illegally; (3) proceeded in an erroneous manner; (4) entered a void order; or (5) is proceeding contrary to the course of the common law. But...