State v. Superior Court of King County, 22396.

• Decision Date: 11 April 1930
• Docket Number: 22396.
• Citation: 286 P. 851,156 Wash. 302
• Parties: STATE ex rel. DE LAPE v. SUPERIOR COURT OF KING COUNTY.
• Court: Washington Supreme Court

286 P. 851

156 Wash. 302

STATE ex rel. DE LAPE v. SUPERIOR COURT OF KING COUNTY.

No. 22396.

Supreme Court of Washington

April 11, 1930

Department 1.

Original proceeding by the State, on the relation of George W. De. Lape, for writ of mandate to require the Superior Court of King County to transfer to the Superior Court of Spokane County an action commenced against relator in the Superior Court of King County by Charles S. Best Company, a corporation.

Writ issued.

George D. Lantz, of Seattle, for plaintiff.

Riddell Brackett & Fowler, of Seattle, for defendant.

PARKER, J.

The relator, De Lape, seeks in this court a writ of mandate requiring the superior court for King county to transfer to the superior court for Spokane county an action commenced against him in the superior court for King county by Charles S. Best Company, a corporation. De Lape rests his claimed right to have the action so transferred upon the ground that it is transitory, and that he was at the time of its commencement a resident of Spokane county.

The facts which we regard as decisive of De Lape's claimed right, appearing undisputed in the record before us, may be summarized as follows: On February 9, 1927, Charles S. Best Company commenced an action in the superior court for King county against De Lape by the service of a summons and complaint upon him, seeking a judgment for money claimed to be owing to it from him. On February 23, 1927, Le Lape served upon counsel for Charles S. Best Company his motion to transfer the action to the superior court for Spokane county, accompanied by his affidavit duly sworn to on that day, stating 'that he has resided in Spokane county continuously since April, 1950, and is now a resident of Spokane county, Washington, and was a resident of Spokane county at the time of the service of the summons and complaint upon him; and that affiant is not and has not been a resident of King county, Washington, since April, 1920.' At the same time, De Lape served upon counsel for Charles S. Best Company his demurrer to its complaint, and also his affidavit of merits showing that he has a good and meritorious defense to the action. The above-quoted sworn statement of De Lape as to his residence in Spokane county from April, 1920, to February 23, 1927, the date of the making of his affidavit, is not denied in any respect; but in December, 1929, Charles S Best Company served upon counsel for De Lape an affidavit of its president stating facts tending to show that De Lape was then residing in Seattle, in King county. That affidavit made nearly three years after the service of De Lape's motion for transfer of the action, is the first resistance to De Lape's motion made in that behalf. That affidavit was answered by counter affidavit made by De Lape, thus raising an issue as to De Lape's continued residence in Spokane county in December, 1929. Thereafter in January, 1930 Charles S. Best Company first filed its complaint in the action in the superior court for King county, and evidently, about the same time, the other papers above noticed were filed in the action. There were other papers filed in the action at about that time by which Charles S. Best Company attempted to present the question of the superior court for King county being the proper court for the trial of the action because of the convenience of witnesses. The record of the action being in this condition, the motion of De Lape for transfer of the action to the superior court for Spokane county came on for hearing, and, being argued by counsel for the respective parties, the court disposed of it as follows:

'It is hereby ordered: That * * *, and defendant's motion for change of venue to the Superior Court of the State of Washington, in and for the County of Spokane, be and the same is hereby denied for the reason and upon the ground that defendant now resides in King County, Washington, and the convenience of witnesses and accessibility of records require the trial hereof in King County. * * *'

Since the venue of the action of Charles S. Best Company against De Lape is not governed by the subject-matter of the cause of action under section 204, Rem. Comp. Stat., and is not governed by where the cause of action arose under section 205 Rem. Comp. Stat., and is not an action against a corporation under section 206, Rem. Comp. Stat., its venue is governed by the following sections of Remington's Compiled Statutes:

'§ 207. In all other cases the action must be tried in the county in which the defendants, or some of them, reside at the time of the commencement of the action, or may be served with process, subject, however, to the power of the court to change the place of trial, as provided in the next two succeeding sections.

'§ 208. If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and demurs or answers, files an affidavit of merits, and demands that the trial be had in the proper county.'

In State ex rel. Martin v. Superior Court, 97 Wash 358, 166 P. 630, 631, L. R. A. 1917F, 905, Judge Chadwick, speaking for the court and citing our prior decisions touching the right of a defendant to have the venue of an action of this nature in the superior court of the county of his...