State v. Superior Court of King County
| Decision Date | 02 May 1911 |
| Parties | STATE ex rel. BIDDLE v. SUPERIOR COURT OF KING COUNTY. |
| Court | Washington Supreme Court |
Department 2. Prohibition by the State of Washington, on the relation of George R. Biddle, against the Superior Court of King County. Motion to quash writ allowed.
Bausman & Kelleher, for plaintiff.
A. A Booth, for defendant.
On March 24, 1911, this court, upon petition of the relator issued an order directing the superior court of King county Hon. John F. Main, judge, to show cause why writ of prohibition should not issue prohibiting and restraining him from issuing a writ of assistance in aid of a decree of foreclosure rendered by him in a certain case then pending in the superior court of King county, wherein J. T. Sullivan was plaintiff and H. W. Hawley was defendant. The foreclosure proceeding was begun on August 18, 1910. The property was sold and bid in by the plaintiff Sullivan, was received a certificate of sale entitling him to the possession thereof. He found George R. Biddle in possession as trustee in bankruptcy of the estate of H. W. Hawley. A petition in bankruptcy had been filed in July, 1910, and Biddle was appointed as trustee on August 20th, and qualified as such on August 24, 1910. Upon this state of facts the court below issued an order to show cause why a writ of assistance should not run, whereupon the trustee, Mr. Biddle, came to this court. May 12, 1911, was fixed as the return day upon our order to show cause, and in the meantime respondent, the superior judge, has appeared and moved to quash the proceeding upon the ground, among others, that the relator has a plain, speedy, and adequate remedy a law--the right of appeal.
The relator seeks to sustain this proceeding upon the theory that, inasmuch as he is in possession and was not made a party to that proceeding, the court cannot now issue a writ commanding him to obey its decree because of a lack of jurisdiction, and that, not having been made a party to the original action, he cannot appeal therein, and is hence forced to the writ of prohibition. We think this position is untenable.
The foreclosure was a proceeding in rem. The court had jurisdiction of the subject-matter, and the rights of the plaintiff against Hawley and wife and of all those claiming by, through, or under him were or might have been adjudicated in that proceeding. If for any reason one asserting an interest in the property was not made a party, he might have been brought in at any stage of the proceedings and his rights adjudicated.
The writ of assistance being a writ in aid of the order or decree of a court of equity, there can be no difference in principle whether the one asserting an interest is brought in as an additional party, before decree or thereafter on an order to show cause why the decree should not foreclose his asserted right. In either event, he has his day in court, and his right can be as fully adjudicated as if he had been made an original party. The result is the same. If it appear that he is in privity with the mortgagee, the writ will run. If it appear that he is not so in privity, or asserts an independent title, it should be denied; the issuance of the writ resting in the sound discretion of the court, and the test being that 'it will be used only when the right is clear and there is no appearance of equity in the defendant, or where there is not a bona fide contest relative to the right of possession.' Hagerman v. Heltzel,...
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