State v. Knutson

• Decision Date: 10 August 1914
• Docket Number: 11792.
• Citation: 81 Wash. 47,142 P. 444
• Court: Washington Supreme Court
• Parties: STATE v. KNUTSON.

142 P. 444

81 Wash. 47

STATE v. KNUTSON.

No. 11792.

Supreme Court of Washington

August 10, 1914

Department 2. Appeal from Superior Court, Kitsap County; Walter M French, Judge.

Action by the State of Washington against Elida Knutson. From an order sustaining a demurrer to the complaint and dismissing the action, the State appeals. Reversed and remanded.

F. W Moore, of Bremerton, for the State. Gill, Hoyt & Frye, of Seattle, for respondent.

MOUNT, J.

This appeal is from an order sustaining a demurrer to a complaint and dismissing the action. The state has appealed.

The action was brought by the prosecuting attorney of Kitsap county charging the defendant with maintaining a nuisance under section 1, c. 127, Laws of 1913, p. 391. The caption of the complaint is as follows:

'State of Washington, Plaintiff, v. Elida Knutson Defendant.'

The first paragraph of the complaint is as follows:

'Comes now R. M. Morford, deputy prosecuting attorney of Kitsap county, Washington duly appointed and qualified, in the name of and by the authority of the state of Washington complains of said defendant, Elida Knutson, as follows, to wit:'

Then follows an allegation charging the maintenance of a nuisance and the prayer for restraining the nuisance, etc.

The defendant appeared to the complaint and filed a demurrer thereto upon two grounds, viz.:

'(1) That there is a defect of party plaintiff.

'(2) That the complaint does not state facts sufficient to constitute a cause of action against the defendant.'

The defendant did not prosecute this demurrer with diligence, and it was overruled for want of prosecution. The defendant thereafter answered and denied generally the allegations of the complaint. The case came on for trial upon the issues made by the complaint and answer, and the defendant at that time, by leave of court, renewed her demurrer on the ground of defect of parties plaintiff. This demurrer was sustained by the court, and leave of the prosecuting attorney to amend the complaint was denied. The action was thereupon dismissed.

The appellant argues three or four questions in the brief, among them that the court erred in denying its right to amend, and that the filing of the answer was a waiver of the demurrer. We shall not notice these questions, because they are unimportant, in view of our conclusion upon the one now to be noticed. The trial court was of the opinion that there was a defect of parties, because in the title of the case it was not stated state of Washington 'upon the relation of the prosecuting attorney of Kitsap county,' and for that reason sustained the demurrer. The statute at section 2 provides:

'Whenever a nuisance exists, as defined in this act, the prosecuting attorney or any citizen of the county may maintain an action in equity in the name of the state of Washington upon the relation of such prosecuting attorney or citizen, to perpetually enjoin said nuisance. * * *'

The caption to the action in this case is 'State of...