State v. Superior Court of King County

• Decision Date: 27 April 1897
• Citation: 48 P. 733,17 Wash. 54
• Parties: STATE EX REL. ALLADIO v. SUPERIOR COURT OF KING COUNTY.
• Court: Washington Supreme Court

48 P. 733

17 Wash. 54

STATE EX REL. ALLADIO v. SUPERIOR COURT OF KING COUNTY.

Supreme Court of Washington

April 27, 1897

Application on the relation of Peter Alladio for a writ of prohibition against the superior court of King county. Granted.

Gordon J., dissenting.

Hardin & Ferry, for petitioner.

Thomas A. Garrett, for respondent.

SCOTT, C.J.

This is an application for a writ to prohibit the superior court of King county from trying an action brought by the Puget Sound Glass Company against one Peter Alladio. The action was commenced before a justice of the peace, and judgment was rendered for the defendant, whereupon the plaintiff sought to appeal to the superior court aforesaid.

It is conceded that the notice of appeal was served on the defendant's attorney on the 17th day of March, 1897, and was filed in said justice's court on the following day and the point is made that this service and filing was insufficient to give the superior court jurisdiction of the cause; and a motion to dismiss the appeal was duly made which the court denied. The hearing before us was had upon notice, and the respondent appeared, an resisted the granting of the writ first on the ground that the application was insufficient, for the reason that the affidavit was not made by the defendant in the action, but was made by his attorney. We think this was a sufficient compliance with the statute. The application was on the part of the defendant, the person beneficially interested. The facts set forth in the affidavit were within the knowledge of the person making it, for the notice was served upon him, and the defendant was not in a position to make the affidavit for want of personal knowledge of the facts.

The next objection is that this court has no authority to issue the writ in such a case as this, but we think this point has been settled by the numerous decisions of this court contrary to the contentions of the respondent, and that there is nothing in this case to call for any further discussion of the question; and the only question to be considered is, was the notice sufficient to confer jurisdiction of the cause upon the superior court? Section 1631, vol. 2 of the Code, provides that an appeal in a civil action from a justice of the peace shall be taken "by filing a notice of appeal with the justice, and serving a copy on the adverse party or his attorney," etc. And we are of the opinion that under this...