State v. Superior Court of Pierce County

• Decision Date: 15 June 1906
• Citation: 85 P. 673,42 Wash. 684
• Parties: STATE ex rel. ALEXANDER v. SUPERIOR COURT OF PIERCE COUNTY et al.
• Court: Washington Supreme Court

85 P. 673

42 Wash. 684

STATE ex rel. ALEXANDER v. SUPERIOR COURT OF PIERCE COUNTY et al.

Supreme Court of Washington

June 15, 1906

Petition for certiorari by Hubbard F. Alexander against the superior court of Pierce county and others to review an order of respondent declaring a public use in condemnation proceedings commenced by the Chicago, Milwaukee & St. Paul Railway Company of Washington against petitioner. Petition dismissed. Judgment below affirmed.

Fullerton J., dissenting.

Hudson & Holt, for relator.

Reynolds & Griggs and H. H. Field, for respondents.

CROW, J.

On February 15, 1906, the Chicago, Milwaukee & St. Paul Railway Company of Washington filed in the superior court of Pierce county its amended petition to appropriate real estate of Hubbard F. Alexander in said county for a right of way. On February 26, 1906, the judge of said court found the contemplated use for which said real estate is sought to be taken is public, and ordered said cause to be continued to April 2, 1906, for the determination of damages and compensation to be paid to the persons entitled thereto. By subsequent continuances the matter of the assessment of damages and compensation was finally set for June 14, 1906. On May 28, 1906, the said Hubbard F. Alexander as relator herein applied to this court for a writ of certiorari to review the said proceedings and order of the superior court. Upon this application a show cause order was issued. In response to said order the respondents have brought up a complete record of the proceedings in the superior court including all the evidence, and have also made a motion in this court to dismiss this proceeding for the reasons that the writ of certiorari herein was not applied for or issued within the time allowed by law, and that the relator has failed to exercise due and reasonable diligence in applying for the same. The hearing in this court has been had not only on said motion to dismiss but also upon the merits. The order declaring a public use was entered February 26, 1906, and relator's application was made to this court on May 28, 1906. Our Code fails to designate any time within which an application for a writ of certiorari must be presented, and the respondent contends that where no such time is fixed by statute, a writ of certiorari to review an order cannot be issued after the expiration of the time within which such order might be reviewed upon appeal if an appeal were allowed. In Spooner v. Seattle, 6 Wash 371, 33 P. 963, this court said: 'The writ of certiorari is in the nature of an appeal, and, while the statute does not fix the time within which the writ should be applied for it should be applied for within a reasonable time after the act complained of has been done. * * *' In the recent case of State ex rel. Lowary (Wash.) 83 P. 726, we said: 'The statute does not fix the time within which such application must be made, but the courts by analogy apply the limitation fixed by law for the prosecution of an appeal. Ordinarily this court will not entertain jurisdiction of an application of this kind after the time limited by law for prosecuting an appeal has expired.' In that case, however, we issued the writ by reason of special facts appearing therein. This rule of practice as stated in the Lowary Case is in perfect harmony with the current of authority as announced in many well-considered cases. See People v. Supervisors, 15 Wend. (N. Y.) 198; Elmendorf v. Mayor of New York, 25 Wend. (N. Y.) 693; People v. Mayor of New York, 2 Hill (N. Y.) 10; Long v. Ohio River Ry. Co., 35 W.Va. 333, 13 S.E. 1010; Burgett v. Apperson, 52 Ark. 222, 12 S.W. 559; Reynolds v. Superior Court, 64 Cal. 372, 28 P. 121; State ex rel. v. Milwaukee County, 58 Wis. 4, 16 N.W. 21; Crosby v. Probate Court (Utah) 5 Pac. 552.

No showing has been made by the relator herein to explain his lack of diligence, nor do any extenuating circumstances appear from the record sufficient to justify his delay or call upon us to exercise our discretion in awarding him additional time beyond the period above mentioned. The respondent contends that the ruling or decision of the superior court sought to be reviewed herein is not a final judgment, but that it is a preliminary order, and that as appeals from any order other than a final judgment must under the provisions of the general appeal act (Ballinger's Ann. Codes & St. § 6502), be taken within 15 days after the entry of such order, an application for a writ of certiorari to review the order here involved should in the absence of special circumstances authorizing a later application be made within such period of 15 days. We do not think this contention can be sustained, as the order here sought to be reviewed is not one of those enumerated in subdivisions 2 to 6 of section 6500, Ballinger's Ann Codes & St., to which the 15-day limit is applied by section 6502, nor do we think the 90-day period mentioned in said section 6502 is applicable here. A writ of certiorari to review an order adjudging a public use in a condemnation proceeding is authorized by reason of the fact that the appeal awarded by the eminent domain act (Ballinger's Ann. Codes & St. § 5645), only affects the propriety and justice of the amount of damages awarded. Western American Co. v. St. Ann Co., 22 Wash. 158, 60 P. 158. The appeal, however, that has been provided by said section 5645, must be taken within 30 days after the entry of the judgment for damages, and we think this period should be adopted by us as the...