State v. Superior Court of State of Washington, for Spokane County

• Decision Date: 27 November 1928
• Docket Number: 21368.
• Citation: 150 Wash. 13,272 P. 60
• Parties: STATE ex rel. CITY OF SPOKANE v. SUPERIOR COURT OF STATE OF WASHINGTON, FOR SPOKANE COUNTY.
• Court: Washington Supreme Court

272 P. 60

150 Wash. 13

STATE ex rel. CITY OF SPOKANE v. SUPERIOR COURT OF STATE OF WASHINGTON, FOR SPOKANE COUNTY.

No. 21368.

Supreme Court of Washington, En Banc.

November 27, 1928

Original mandamus by the State, on the relation of City of Spokane against the Superior Court of the State of Washington, for Spokane County; Hon. William A. Huneke, Judge. Writ denied.

J. M Geraghty and Alex M. Winston, both of Spokane, for relator.

C. W Greenough and A. O. Colburn, both of Spokane, for respondent.

BEALS J.

Relator seeks to make peremptory an alternative writ of mandamus directed to the Honorable William A. Huneke, judge of the superior court of the state of Washington, for Spokane county, requiring him to sign a proposed judgment prepared by relator in cause No. 77721 of the files of the superior court for Spokane county, entitled 'The State of Washington on the relation of City of Spokane, a municipal corporation plaintiff, v. G. F. De Graff, as County Treasurer of Spokane County, defendant,' or show cause before this court why he should not sign the same.

Respondent has appeared and filed his return to the alternative writ.

The facts giving rise to this proceeding are as follows: The city of Spokane, a municipal corporation, instituted in the superior court for Spokane county against G. F. De Graff, as treasurer of Spokane county, a proceeding by way of an application for a writ of mandamus (which we herein refer to as the main action), requiring the respondent to accept from the relator a certain warrant drawn by relator, the city of Spokane, in favor of Spokane county, in payment of certain delinquent general taxes due against certain real property in Spokane county, which relator desired to redeem pursuant to Chapter 170, Laws of 1925, Extraordinary Session. The trial of the main action resulted in a judgment of dismissal thereof, from which relator, the city of Spokane, appealed, with the result that this court reversed the judgment of dismissal. State ex rel. City of Spokane v. De Graff, 143 Wash. 326, 255 P. 371. The superior court, in dismissing the action, held the law under which the city was endeavoring to proceed to be unconstitutional, and for that reason dismissed the proceeding. This court held the act in question constitutional and reversed the judgment of dismissal without giving the lower court specific directions as to what further proceedings it should take.

Prior to the entry of the order of dismissal the superior court signed certain findings of fact, which were not excepted to by the defendant, and entered the following conclusion of law:

'That Chapter 170 of the Session Laws of the Extraordinary Session of the Legislature of the State of Washington is unconstitutional, and that by reason thereof the relator is not entitled to any relief herein,--to which conclusions of law the relator excepts, and said exception is allowed by the court.'

In his return to the alternative writ of mandamus now before us, respondent states that the defendant in the main action has not yet had a full and complete hearing, and sets forth a copy of his memorandum decision rendered upon this relator's application for the entry of judgment, in which opinion respondent states that the findings of fact were prematurely and inadvertently signed, and that the same should not have been signed until the evidence was all before the court. Respondent in his decision further directs that the case be regularly set down for trial.

Relator contends that, as the findings of fact made by the trial court were not excepted to and that as the same follow the statute, which this court has held constitutional, and the allegations of relator's amended complaint in the main action, it is now the duty of the trial court to sign the judgment in this relator's favor prepared by its counsel.

Respondent takes the position that the judgment of this court reversing the judgment dismissing the main action leaves that cause in exactly the condition it was in just prior to the entry of the judgment of dismissal thereof, and that the trial court may disregard the findings of fact which it signed and entered and may, in the exercise of its discretion proceed to hear further testimony in the action before rendering judgment.

This is not a case in which a writ of mandate, by way of a writ of procedendo, is sought to compel an inferior tribunal to proceed with the trial of an action, as the superior court is not refusing to proceed, but, on the contrary, has directed that the cause be regularly set down for trial. Neither does this proceeding fall within that class of cases of which State ex rel. Gabe v. Main, 66 Wash. 381, 119 P. 844, is an example, where the lower court has, in disregard of an absolute right to instant relief, as shown by admitted facts, and where no room for the exercise of discretion on the part of the court exists, entered an erroneous order and refused to accord relator relief to which he is clearly entitled.

To this class also belongs the case of State ex rel. Stone v. Superior Court, 97 Wash. 172, 166 P. 69.

On the other hand, it is unquestionably the law that the discretion of the trial court cannot be controlled by mandamus, State ex rel. Romano v. Yakey, 43 Wash. 15, 85 P. 990. 9 Ann. Cas. 1071; State ex rel. McDonald v. Steiner, 44 Wash. 150, 87 P. 66; and in our opinion the proceeding now before us falls within this rule.

On the appeal of the main action, it was held that the law under which the city of Spokane was endeavoring to proceed was constitutional, and that the lower court had erred in holding the same unconstitutional and in dismissing the city's action. Upon reversal of that judgment of dismissal, this court having given the superior court no specific directions as to its further proceedings, the judge of that court before whom the matter next came regularly for hearing, had the power, in the exercise of his sound discretion, to open the case for further testimony on application of either party and to hear and...