State v. Moss

• Citation: 13 Wash. 42,42 P. 622
• Parties: STATE EX REL. ABERNETHY v. MOSS, MAYOR, ET AL. [1]
• Decision Date: 12 November 1895
• Court: United States State Supreme Court of Washington

42 P. 622

13 Wash. 42

STATE EX REL. ABERNETHY v. MOSS, MAYOR, ET AL. ^[1]

Supreme Court of Washington

November 12, 1895

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Mandamus proceeding by the state of Washington, on the relation of Robert Abernethy, against Ed. Moss, as mayor, and G. Leyson as clerk, of the town of Medical Lake, to compel defendants to correct errors in certain town warrants issued by it, and to issue proper warrants in their stead. From a judgment for respondents, relator appeals. Respondents move to strike the statement of facts. Motion denied. Judgment reversed.

Dunbar J., dissenting.

L. H. Prather, for appellant.

Jones Belt & Quinn, for respondents.

SCOTT J.

The respondents move to strike the statement of facts herein, on the ground that a copy of the same was served upon them before the original was filed with the clerk of the court; and in support of said motion one of the attorneys for the respondents makes an affidavit in this court to the effect that on the 24th day of May, 1895, at his office, in the Hyde Block, in the city of Spokane, there was presented to him by the appellant the original statement of facts, with a request that he admit service of the same, and that he did so by indorsing such admission upon such original statement, and that at said time there was no filing mark on said statement showing that the same had been filed with the clerk of the court, and that he was informed and believed that the same had not been filed; but it does not appear from whom this information was obtained. It seems to us that this showing is insufficient. In the first place, if we were to presume that the statement had not been filed with the clerk of the court when served, because there was no filing mark thereon at the time, it does not appear but that the same might have been filed practically at the same time service was admitted by the respondents. For aught we know, the clerk's office might have been in a room adjoining the one where the service was made; and if the respondents had admitted service of the statement one moment, and the next moment the same had been presented to the clerk of the court for filing so that the filing was contemporaneous with the serving, that certainly would have been sufficient. But, aside from this, we do not think that a question of this kind should be presented to us for determination upon affidavits filed in this court. If the respondents desired to attack the statement upon the ground specified, they should have raised the objection in the lower court, and made proof of the facts upon which the attack was based; and the lower court might have taken proofs, or such steps as it should have deemed necessary, to determine the fact as to whether the statement was filed at or prior to the time of service. Possibly an appeal to this court would lie from the decision of that court upon the question of fact, but we are not called upon to determine this question at this time. Motion denied.

The subject-matter of this litigation has been before this court on a former occasion, in Abernethy v. Town of Medical Lake, 9 Wash. 112, 37 P. 306, where the relator had brought an action against the town to recover the amount in controversy; and it was held that he had mistaken his remedy and should resort to mandamus. After the determination of said suit this proceeding in mandamus was brought, and,...