State v. Superior Court for King County

• Decision Date: 12 May 1913
• Parties: STATE ex rel. MURPHY, Pros. Atty., v. SUPERIOR COURT FOR KING COUNTY.
• Court: Washington Supreme Court

131 P. 1136

73 Wash. 507

STATE ex rel. MURPHY, Pros. Atty., v. SUPERIOR COURT FOR KING COUNTY.

Supreme Court of Washington

May 12, 1913

Department 2. Original application by the State, on the relation of John F. Murphy, Prosecuting Attorney in and for the County of King, for a writ of mandamus to the Superior Court of the State of Washington for King County (John E. Humphries Judge). Writ ordered to issue, directing the superior court to take jurisdiction of a certain cause and proceed therewith to a final judgment.

John F Murphy and John C. Higgins, both of Seattle for relator.

Hastings & Stedman, Guie & Guie, and Jay C. Allen, all of Seattle, for respondent.

MAIN J.

This is an original application in this court for a writ of mandamus.

So far as now material, it appears that a disbarment proceeding had been instituted in the superior court of the state of Washington, for King county, against Herbert E. Snook, a duly licensed and regularly practicing attorney. The cause came on regularly for trial on the 27th day of June, 1912. After the relator had made his opening statement, the respondent objected to proceeding further, for the reason that it appeared that no civil action had been begun against the respondent by one A. H. Tantow, with whom it was charged the respondent, in his transactions, had been guilty of professional misconduct. Thereupon the court refused to proceed with the trial at that time and entered the following order, which was filed on July 3, 1912: 'It is ordered that the further hearing of this matter be and the same is hereby postponed and continued for the period of thirty days from this date. It is further ordered that if within thirty days from this date A. H. Tantow shall institute an action against respondent herein upon the matters set forth in the complaint in this action, then and in that event this action be further stayed until the determination of such suit or suits so instituted by the said A. H. Tantow, but in case the said Tantow should fail or neglect to so institute an action against the said Herbert E. Snook upon said matters, within the period of thirty days from this date, then and in that event this action be dismissed, and the objection of the respondent to the introduction of any testimony be sustained in such event. Relator excepts to the above order and to each part thereof on the ground that it is unwarranted by law, and exception is allowed. Done and ordered this ___ day of June, 1912. Daniel H. Carey, Judge.'

Thereafter a civil action was not begun by Tantow within the 30 days specified in the order, or at all. The matter again came on for hearing before the superior court on the 23d day of November, 1912, upon the application of the relator to set the cause for trial, and the court thereupon entered an order which, so far as material, is as follows: [The court], 'being fully advised, refused and declined to set the said cause for trial because and for the reason of the order heretofore made herein by the Honorable D. H. Carey, Judge, then presiding in this court, on the ___ day of June, 1912; and the court finding, because of said order, it would be improper to set the case for trial, as asked for, or at all: Wherefore, by reason of the law and the premises, it is ordered that the motion to set this cause for trial be and the same is hereby denied, to which the relator excepts, and his exception is allowed. Done in open court this 14th day of December, 1912. H. A. P. Meyers, Judge.'

Subsequently, and on the 15th day of February, 1913, the cause again came on regularly to be heard before the superior court upon the application of the relator 'for an order of this court to set the case for trial, or to otherwise proceed therewith.' Thereupon the court entered an order, the material parts of which are as follows: '* * * The court finding that this cause came on regularly to be tried before this court on the 27th day of June, 1912, that at said time this court made an order and entered a judgment herein to the effect that this cause should be continued for the period of thirty days, within which time A. H. Tantow should commence an action, and if said action was not so commenced within said period of thirty days that this cause should be deemed dismissed, and the court further finding that no such action was commenced by the said A. H. Tantow within said period of thirty days or at all, but that, on the contrary, the said Tantow has refused and declined to commence any action, and it further appearing to the court and the court finding that heretofore, to wit, on the ___ day of December, 1912, the relator herein made a motion herein to have this cause set for trial, and that the court having considered said motion and the affidavits filed in support thereof did decide and hold that the order heretofore entered on the ___ day of June, 1912, was self-executing, and that this cause was dismissed, did enter an order herein declining to set this cause for trial at said time or at all, and the court again finding that the previous orders herein have fully determined, settled and dismissed this cause, does not for said reasons deny the motion herein to assign this case for trial, to which the relator excepts, and his exception is allowed. Done in open court this 25th day of February, 1913. John E. Humphries, Judge.'

Following this, and on March 24, 1913, the relator herein filed his application in this court, praying for a writ of mandamus directed to the Honorable John E. Humphries, as judge of the superior court, commanding him to set the cause for trial, or to otherwise proceed therewith.

The respondent contends that the above-mentioned orders were final judgments, and that the relator's remedy is by appeal. The relator contends that none of the above orders were final, and that he has no right of appeal therefrom. These respective contentions present the principal question to be determined upon this application, which is, Has a final judgment been entered in the cause?

It is clear that, if any one of the orders above referred to is in effect a final judgment, there is an adequate remedy by appeal therefrom, and in that event the writ of mandamus should be withheld.

In State ex rel. Light Co. v. Superior Court, 20 Wash. 502, 55 P. 933, it is said: 'But, in addition, it plainly appearing that there is an adequate remedy by appeal, we take this opportunity of announcing the law of this state to be that extraordinary writs of this character [mandamus] will not be allowed to issue when there is an adequate remedy at law.'

A final judgment is one which disposes of the controversy, either by dismissing the cause before hearing is had upon the merits, or after trial, by rendering judgment in favor of one or the other of the parties to the action.

In Cyc. (volume 23, p. 672) it is said: 'Judgments may be either final or interlocutory. A final judgment is one which disposes of the case, either by dismissing it before a hearing is had upon its merits, or after trial, by rendering judgment either in favor of plaintiff or def...