State v. Superior Court, Pacific County

• Citation: 152 P. 1,87 Wash. 603
• Decision Date: 19 October 1915
• Docket Number: 12956.,12950
• Parties: STATE ex rel. NIXON et al. v. SUPERIOR COURT, PACIFIC COUNTY.
• Court: United States State Supreme Court of Washington

152 P. 1

87 Wash. 603

STATE ex rel. NIXON et al. v. SUPERIOR COURT, PACIFIC COUNTY.

Nos. 12950, 12956.

Supreme Court of Washington

October 19, 1915

Application for writ of mandate by the State, on the relation of Frank Nixon and others, to require Edward H. Wright, Judge of the Superior Court of Pacific County, to grant a motion for change of judge. Denied.

Lockerby & Couden, of South Bend, for respondent.

MOUNT J.

These are two applications for writs of mandate to require the respondent judge to grant a motion for a change of judge upon the hearing of exceptions of creditors to the report of a receiver, 'and for a change of judge in all other proceedings hereafter to be had in the receivership action.' The two applications were heard together, and will be considered together in this opinion.

It appears that on October 6, 1914, the state, upon the relation of the Attorney General, filed a complaint against the Raymond Trust Company in the superior court for Pacific county. That action resulted in the appointment of one A. W Hammond as receiver for the Raymond Trust Company, an insolvent banking corporation. The receiver thereafter duly qualified, and has ever since been acting as such receiver.

Prior to the appointment of the receiver, a petition signed by a considerable number of depositors and creditors of the Raymond Trust Company was presented to the judge, asking that one Reed be appointed as such receiver. The judge declined to appoint Mr. Reed, and appointed Mr. Hammond. Thereafter, on October 8, 1914, a meeting of the creditors was held. The judge was invited to this meeting, and was present. He was then requested to remove Mr. Hammond and appoint Mr. Reed as receiver. This request was also refused.

Thereafter a number of orders, ex parte and upon hearing in open court were made and entered by the court. Afterwards, on June 25, 1915 another request was made for the removal of Mr. Hammond as receiver. This request was also denied. Thereafter, on July 19, 1915, the relators in this proceeding filed with the clerk of the superior court for Pacific county a petition for the removal of the receiver, and at the same time filed an affidavit of prejudice. This affidavit was made by Mr. Nixon, who stated, in substance, that he was one of the creditors of the Raymond Trust Company, insolvent, and that the judge was prejudiced against the affiant and other creditors of the Raymond Trust Company so that such creditors could not have a fair and impartial trial before such judge. This motion was denied. Thereafter an application was made to this court for a writ of mandate. Afterwards the receiver filed a report of his doings as such receiver, and a time was fixed for the hearing upon the report, when the same creditors filed exceptions to the report and again filed a motion for change of judge. This motion was also denied, and another application was made to this court for another writ of mandate.

The respondent makes two contentions in this court why the writ of mandate should not issue, to the effect that: First, the relators are not parties to the receivership proceedings, and are therefore not authorized to disqualify the judge; and, second, that the application for change of judge was not timely made.

The statute provides at section 209-1, 3 Rem. & Bal. Code:

'No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. * * *'

Section 209-2, 3 Rem. & Bal. Code, provides:

'Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: Provided, further, that no party or attorney shall be permitted to make more than one application in any action or proceeding under this act.'

It is plain that the relators here were not named as parties in the original receivership case. The plaintiff in that case was the state of Washington, upon the relation of the Attorney General. The defendant was the Raymond Trust Company, an insolvent banking corporation. While the creditors of the banking corporation are, no doubt, interested in the result of the receivership proceeding, they are not parties to that action. They are, at most, quasi parties, interested only in the proceeds of the assets of the insolvent corporation.

In the case of Wooding v. J. Wooding & Co., 10 Wash. 531, 39 P. 137, this court said:

'And this leads us to scan the method by which the appellants have sought to set aside the order appointing this receiver. Creditors are not made parties to such actions, and appellants were not parties in this case. They were not interveners, because the statute governing interventions does not cover such cases, and because they took none of the steps prescribed for the accomplishment of an intervention.'

And in Churchill v. Stephenson, 14 Wash. 620, 45 P. 28, this court said:

'In an action of this character the interest of a mere general or contract creditor is not of such a direct and immediate character as entitles him to intervene.'

In 34 Cyc. at page 343, the rule is stated as follows:

'Interventions by persons interested in the funds of a receivership will not be permitted if their rights may be conserved without it, since such interventions multiply the number of litigants, and, if begun in the case of one creditor, cannot be consistently denied as

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