State v. Superior Court of King County

• Decision Date: 10 April 1918
• Docket Number: 14658.
• Citation: 172 P. 257,101 Wash. 81
• Parties: STATE ex rel. MARTIN v. SUPERIOR COURT OF KING COUNTY et al.
• Court: Washington Supreme Court

172 P. 257

101 Wash. 81

STATE ex rel. MARTIN v. SUPERIOR COURT OF KING COUNTY et al.

No. 14658.

Supreme Court of Washington

April 10, 1918

Department 2.

Original application for writ of mandate by the State of Washington on the relation of Mary I. Martin, as next friend of Judge R Andrews, against the Superior Court of King County, Wash. and John S. Jurey. Writ to issue.

Mount and Parker, JJ., dissenting.

Davis &amp Neal, of Tacoma, for appellant.

Jas. B. Kinne, of Seattle, for respondents.

CHADWICK J.

This is an application for a writ of mandate to compel the respondent superior judge to take jurisdiction of, and hear, the petition of the relator, who appears as the next friend of Judge R. Andrews, who is under the parole of a superior judge of King county as an insane person. Relator filed his petition in the original proceeding, setting up the present sanity of Andrews, and asking the court to so declare by order or judgment.

The wife of Andrews, who had theretofore been appointed as his guardian, appeared by counsel and demurred to the petition. The matter coming on regularly to be heard, the court entertained a plea to the jurisdiction of the court to hear the petition, and held that the superior court was without jurisdiction to hear and determine. At the request of counsel a judgment of dismissal was withheld until application could be made to this court for a writ of mandate.

Although counsel waives all question as to the propriety of granting the writ, we have not been able to overcome the objection sua sponte of at least one member of the department that the writ should not issue for the reason that relator has an adequate remedy by appeal. It is said that the writ cannot issue without overruling certain decisions of this court. It seems to the writer and his associates who join in this opinion that a writ may issue. But for the objection, we have thought that the right of a court to direct an inferior court to assume jurisdiction in a proper case, where jurisdiction had been denied, and to hear and determine, had never been questioned.

Jurisdiction is the power to hear and determine. It is the power by which courts take cognizance of and decide cases.

'Jurisdiction is of tow sorts--jurisdiction over the subject-matter, and jurisdiction over the party with reference to that subject-matter.' Words and Phrases, vol. 4, p. 3884.

'It is settled beyond controversy that, where a court, acting on an erroneous view of the law, declines jurisdiction of a cause, mandamus will lie to compel it to take cognizance thereof.' Note Ann. Cas. 1915D, 199.

See, also, 26 Cyc. 190 et seq.

It was 'one of the ancient offices of this writ * * * to compel action by lower judicial tribunals respecting matters properly before them and within their jurisdiction. If such courts decline to exercise their judicature or to decide matters pending before them, mandamus has always been regarded as the appropriate means by which to set in motion their jurisdictional power. It lies to compel the performance of whatever appertains to the duty of lower courts, where there has been for any reason a refusal to act. Its agency in cases of this class is confined to setting in motion the judicial activities so that a decision will be reached, but it does not extent to any direction as to what that decision ought to be.' Crocker v. Justices of Superior Court, 208 Mass. 162, 94 N.E. 369, 21 Ann. Cas. 1061.

It was so held in State ex rel. Shannon v. Hunter, 3 Wash. 92, 27 P. 1076, where the court, although admitting a doubt, which to us seems fanciful, held on authority that 'the proper remedy where a cause has been erroneously dismissed for want of jurisdiction is mandamus.' This case was followed in State ex rel. Maltby v. Superior Court, 7 Wash. 223, 34 P. 922. In this case the court says the rule rests in the highest authority. Of this there can be no question. It may be questioned whether any authority can be found to the contrary. See, also, State ex rel. Smith v. Parker, 12 Wash. 685, 42 P. 113; State ex rel. Smith v. McClinton, 17 Wash. 45, 48 P. 470. Lack of space permits the citation of but few of scores of cases. The rule is recognized by every textwriter, and may be found in every encyclopedia.

Says Mr. High in his Extraordinary Legal Remedies:

'The jurisdiction by writ of mandamus over inferior judicial tribunals, although closely guarded and jealously exercised by the courts, is too well established to admit of controversy, and forms one of the most salutary features of the general jurisdiction of the courts by mandamus. It is most frequently invoked for the purpose of setting inferior courts in motion, and to compel them to act when action has been either refused or delayed. The earlier remedy, adopted in England, for the refusal or neglect of justice on the part of the courts, was by writ of procedendo ad judicium. This was an original writ, issuing out of chancery, to the judges of any subordinate court, commanding them in the king's name to proceed to judgment, but without specifying any particular judgment. If this writ was disobeyed, or if the judges to whom it was addressed still neglected or refused to act, they were liable to punishment for contempt, or by an attachment returnable either in the king's bench or in the common pleas. The use of the writ of procedendo for the purpose of quickening the action of inferior courts, and preventing a delay of justice, has in modern times been superseded by the writ of mandamus. And the latter is now regarded as the proper, if not the only, remedy by which the sovereign power may compel the performance of official duty by inferior magistrates and officers of the law.' High, Extraordinary Legal Remedies, §§ 147, 148.

See Spelling on Injunction and Other Extraordinary Remedies (2d Ed.) § 171; Works on Courts and Their Jurisdiction, p. 620; Merrill on Mandamus, §§ 36 and 203; Tapping on Mandamus, § 154.

The theory advanced against the weight of authority is: If a court has no jurisdiction, it must be granted that it has jurisdiction to hold that it is without jurisdiction, and, this being so, a refusal of a court to take jurisdiction is no more than error, and like any other error, is to be corrected on appeal. Of all the text-writers, Mr. Bailey in his work on Jurisdiction is the only one who seems to lend sanction to this theory. He says:

'Some courts make the distinction that, where the court entertains jurisdiction, then its decision cannot be controlled, but, where it refuses to exercise jurisdiction, it may be compelled. On first impression it would seem that, where the jurisdiction of the court is invoked by petition or other proceeding, and the court entertains the proceeding to the extent of acting upon it and determining its sufficiency or insufficiency, it has assumed jurisdiction, and, though its determination may have been erroneous, this is but an error of judgment, that it has exercised its judgment and discretion, which is not subject to review by mandamus, and that ordinarily such error may be corrected upon appeal or by writ of error. Where, however, such determination cannot be reviewed, then the writ might issue to prevent a failure of justice.' Bailey on Jurisdiction, § 594.

This he advances without authority or color of authority. While citation of authority would not make it good law if it were bad, like many first impressions, it will not stand the test of reason. It will not go on paper, and this, we suspect, is why it finds no mention in the books.

It is fundamental that a higher court will not control the judicial acts of an inferior court. It will not invade the realm. Its prime function is to review for error. The first consideration then must be to determine the character of the act of the inferior court. Is a judgment of dismissal based upon a denial of jurisdiction over a subject-matter a judicial act in the sense that it is a judgment which ought to be reviewed on appeal?

A dismissal under the mistake belief that the court has no jurisdiction is in no sense a judicial act; for it rests upon a disclaimer of the judicial function. The court has neither heard nor determined. Neither the law nor the facts are affected in the slightest degree, and, appeals being for the correction of judicial errors, errors of discretion or of the judicial mind, it follows that one entitled should have resort to some method by which the court can be set in motion. The court has done nothing which is either judicial or discretionary. It has refused to do either. Its judgment is nullus fillius, a void thing, binding no one, a legal nonentity.

'Where an action is dismissed on the sole ground that the court has no jurisdiction of the subject-matter of the suit, * * * this is, of course, no adjudication of the merits and no bar to another action for the same cause.' Black on Judgments (2d Ed.) § 713.

In Cowan v. Fulton, 23 Grat. (Va.) 579, the court denied its jurisdiction upon the ground that the act relied on to sustain it was unconstitutional. It was held that a writ should issue, the court saying:

'But it is insisted that, conceding the law referred to to be constitutional, still the judgment of the circuit court dismissing the cause for want of jurisdiction and striking it from the docket is a final judgment in the cause; and, the term at which this supposed judgment was rendered having passed by, it is not competent to the appellate court, by mandamus, to compel in effect a rehearing of the cause.

'If the premises were true, the conclusion might perhaps be conceded; for it certainly is not regular nor proper to use the writ of mandamus to review or rehear the judgments of a subordinate court; but the fallacy of the argument consists in the assumption that

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