State v. Parker

• Citation: 12 Wash. 685,42 P. 113
• Parties: STATE EX REL. SMITH ET AL. v. PARKER, JUDGE OF SUPERIOR COURT.
• Decision Date: 30 October 1895
• Court: United States State Supreme Court of Washington

42 P. 113

12 Wash. 685

STATE EX REL. SMITH ET AL. v. PARKER, JUDGE OF SUPERIOR COURT.

Supreme Court of Washington

October 30, 1895

Application by the state of Washington, on relation of Andrew C. Smith and another, executors, etc., for a peremptory writ of mandate to compel Emmett N. Parker, judge of the superior court of Pierce county, to take jurisdiction of a certain action of forcible entry and detainer brought by relators. Writ granted.

Parsons Corell & Parsons, for plaintiffs.

Emmett N. Parker, in pro. per.

HOYT C.J.

Relators brought an action to recover possession of certain premises under the forcible entry and detainer act of March 7, 1891. Upon the filing of the complaint, a summons was issued by the attorneys for the plaintiffs, in accordance with the provisions of the practice act of 1893 excepting that the defendant was required to answer on a day certain eight days from the date of the summons. This summons was duly served on the day of its issue. Upon the return day the plaintiffs appeared, and the defendant, by his attorney filed a motion to quash the summons and dismiss the action, for the reason that the court had no jurisdiction of the person of the defendant. This motion was granted by the court, except that it gave to the plaintiffs leave to have issued and served a new summons, requiring the defendant to appear in the action within 20 days. By this proceeding, it is sought to procure from this court a peremptory writ of mandate requiring the superior court to take jurisdiction of the cause, and proceed therein.

By his answer, the judge of said court, against whom the writ is sought, admits the facts to be as stated in the petition and exhibits annexed thereto, and states that the reason for his refusing to entertain jurisdiction of the person of the defendant was that, in his opinion, the time in which the summons should be made returnable provided for in the act as to forcible entry and detainer had been changed by the practice act of 1893, so that the summons should have required defendant to answer within 20 days from the date of its service upon him. Upon this return but a single question is presented for our decision, and therefrom it may be fairly presumed that if, in the opinion of this court, the practice act of 1893 did not so amend the act as to forcible entry and detainer as to change the time in which the summons provided for therein should be made returnable, it should be held that the superior court had wrongfully refused to take jurisdiction of the cause and proceed therein and that a peremptory writ of mandate should be issued commanding it to do that which it had wrongfully refused to do. But the attorney for the defendant in the forcible entry and detainer proceeding appeared at the hearing, and made the further contention that the action of the superior court in refusing to take jurisdiction was right, for the reason that the summons was issued by the attorney for the plaintiffs, as provided for by the practice act in force at the time it was issued, instead of by the clerk of the court, as required when the forcible entry and detainer act was passed. In addition to this contention, he raises a question as to jurisdiction to grant the relief prayed for in the petition, his contention in that regard being that this court has no jurisdiction to issue a writ of mandate to a superior court excepting in aid of its appellate jurisdiction. But, even if we should concede this to be true, it would not, in our opinion, deprive us of jurisdiction to compel by such writ a superior court to proceed in a cause to such a final determination as would authorize an appeal to this court. To compel it thus to proceed would be necessary to make effective the right of appeal. If this court has not the power to compel a superior court to proceed to the final determination of a cause, it would be within its power to prevent an appeal, for the reason that no appeal would lie until such court had taken action. Whether it be for this reason, or because of the provision of our constitution which specially authorizes writs of mandate to issue from this court to state officers, or by reason of its...