State v. Steiner

• Decision Date: 18 October 1906
• Citation: 87 P. 66,44 Wash. 150
• Court: Washington Supreme Court
• Parties: STATE ex rel. McDONALD v. STEINER, Judge.

87 P. 66

44 Wash. 150

STATE ex rel. McDONALD v. STEINER, Judge.

Supreme Court of Washington

October 18, 1906

Application by the state, on relation of J. H. McDonald, for a peremptory writ of mandamus against R. S. Steiner, judge of the superior court. Application denied.

Peter McPherson, for plaintiff.

CROW J.

This is an application for a writ of mandamus to be directed to the Honorable R. S. Steiner, judge of the superior court of the state of Washington in and for Okanogan county, commanding him to proceed with the trial of an action. The relator, J H. McDonald, alleges that he is the plaintiff in an action for damages on an injunction bond now pending in the superior court of Okanogan county, wherein C. A. Blatt, as principal and Burt Hawthorn and H. G. Bragg, as sureties, and defendants; that after personal service the defendants filed their motion to quash the summons; that prior to the hearing of said motion the relator filed his motion for a default that the motions for default and to quash service were heard and overruled, and defendants being granted 15 days within which to plead; that, the defendants having failed to answer or demur, the relator filed a second motion for default; that prior to the hearing thereof the defendants demurred to the complaint; that afterwards the second motion for default was granted, whereupon the relator moved the court to impanel a jury to fix the amount of his damages; that the defendants made an application to set aside the default, which application was, on February 13, 1906 denied, and the cause was continued until the May, 1906, term of the court; that on May 9, 1906, the relator renewed his request to the court to set a time for taking evidence in support of his claim for damages, but that the respondent peremptorily refused to set any time for the taking of evidence, and also refused to hear the cause until another action wherein C. A. Blatt was plaintiff and the relator J H. McDonald was defendant should be tried and determined. Upon the relator's application an alternative writ of mandamus was issued, directing the respondent to proceed with the trial, or appear in this court and show cause why he should not do so. The respondent has filed his answer, from which it appears that ducing the year 1905, one C. A. Blatt, being the C. A. Blatt mentioned in the relator's affidavit, instituted an action in the superior court of Okanogan county against J. H. McDonald, the relator herein, to determine Blatt's right to the exclusive possession of a tract of land embraced within certain mining claims in Okanogan county; that in said action a temporary order was granted, enjoining McDonald from fencing the land in controversy; that an injunction bond was given, in which Blatt was principal and Hawthorn and Bragg were sureties; that, upon trial, a nonsuit was entered upon the motion of McDonald, the action was dismissed, and the restraining order was dissolved; that the action now prosecuted by McDonald, concerning which complaint is made herein, was brought on the injunction bond to recover damages against Blatt as principal and Hawthorn and Bragg as sureties; that shortly thereafter Blatt instituted a second action against McDonald, setting forth the same cause of action alleged in his former suit, but that issue of fact has not been joined therein; that at the May, 1906, term, McDonald demanded of the respondent that his damage suit be set for trial; that thereupon the respondent stated to McDonald's that in respondent's opinion McDonald's right to damages would depend in a large degree upon a determination of the issue whether Blatt was in fact the true owner of the mining claims during the time involved in the controversy; that the question of Blatt's ownership and...