State v. Superior Court of King County

• Court: Washington Supreme Court
• Writing for the Court: RUDKIN, J.
• Citation: State v. Superior Court of King County, 85 P. 989, 43 Wash. 34 (Wash. 1906)
• Decision Date: 07 July 1906
• Parties: STATE ex rel. YOUNG v. SUPERIOR COURT OF KING COUNTY et al.

85 P. 989

43 Wash. 34

STATE ex rel. YOUNG v. SUPERIOR COURT OF KING COUNTY et al.

Supreme Court of Washington

July 7, 1906

Certiorari by the state, on relation of J. L. Young, against the superior court of King county and another, to review an order vacating a temporary injunction restraining the city of Columbia from grading one of its streets to the damage of relator's abutting property. Writ discharged.

Willett & Willett, for relator.

Anthony M. Arntson, Arthur P. Redman, and F. A Gilman, for respondents.

RUDKIN J.

The relator brought an action in the superior court of King county to restrain the city of Columbia from grading one of the city streets, upon the ground that such grade would damage the relator's abutting property, and such damage had not been ascertained or paid in the mode required by the Constitution. A hearing was had on a motion for a temporary injunction, after notice, and upon such hearing the application was denied. The relator thereupon applied to this court for a writ of review to review the order denying the motion for a temporary injunction. The writ was allowed, and the entire record is now before us.

The first question for consideration is: Should the writ of review issue in a case such as this? 'Independent of legislation, and upon principle as well as authority, it is believed that the doctrine is that an order either granting or refusing a preliminary injunction, being merely an interlocutory order made during the progress of the case does not partake of the nature of a final judgment or decree to such an extent as to warrant an appeal therefrom, or to justify a court of review in revising the action of the inferior court upon such question.' 3 High on Injunctions, § 1693. 'The issuance of a preliminary injunction, which will put restraints upon the defendant before the rights of the parties have been fully investigated and tried, rests solely in the discretion of the chancellor and as a general rule his action in ordering or denying a preliminary injunction will not be reviewed on appeal or otherwise controlled.' 10 Enc. of Pl. & Pr. p. 983. The Legislatures of many of the states have provided for appeals in such cases in one form or another. Ballinger's Ann Codes & St. § 6500, subd. 3, allows an appeal 'from any order granting or denying a motion for a temporary injunction, heard upon notice to the adverse party, and from any order vacating or refusing to vacate a temporary injunction: Provided, that no appeals shall be allowed from any order denying a motion for a temporary injunction or vacating a temporary injunction, unless the judge of the superior court shall have found, upon the hearing, that the party against whom the injunction was sought was insolvent.' There is no finding of insolvency in this case, and it is conceded that no appeal would lie. Colby v. Spokane, 12 Wash. 690, 42 P. 112; Anderson v. McGregor, 36 Wash. 124, 78 P. 776.

Why did the Legislature deny an appeal, except in cases of insolvency? It seems to us the reason is obvious. It was not because the Legislature had already provided another method for the review of such orders, nor because it contemplated a different method of review in the future, but because it deemed an appeal from the final judgment, or an action at law for damages, an adequate remedy in such cases. In other words, it is plain to us that the Legislature intended that such orders should not be subject to review in this court in any form, except on appeal from the final judgment. The power of this court to review interlocutory orders and the method of review are purely statutory, and when it is apparent that the Legislature intended that a particular order should not be subject to review here, we are entirely without jurisdiction in the premises. The relator contends, however, that constitutional questions are involved in this case, and that a different rule applies. It is true the relator based his right of action in the court below upon the ground that the defendant was about to damage his property in violation of the Constitution of the state, but it is equally true that this claim has been denied by a court of competent jurisdiction. Unless the law otherwise provides, property rights which are safeguarded by the Constitution do not stand upon a different footing from property rights which are safeguarded by the common or statute law. All such rights are protected by the same courts and by the same procedure. In support of this contention, the relator cited State ex rel. Smith v....