State v. Superior Court of Pierce County

• Decision Date: 17 March 1898
• Citation: 52 P. 522,19 Wash. 114
• Parties: STATE EX REL. HOLGATE v. SUPERIOR COURT OF PIERCE COUNTY ET AL.
• Court: Washington Supreme Court

52 P. 522

19 Wash. 114

STATE EX REL. HOLGATE v. SUPERIOR COURT OF PIERCE COUNTY ET AL.

Supreme Court of Washington

March 17, 1898

Application by the state, on the relation of Henry Holgate, against the superior court of Pierce county and others, for mandamus. Writ denied.

Claypool, Cushman & Cushman, for relator.

DUNBAR J.

This is an application for a writ of mandamus to compel the superior court of Pierce county to direct and cause to be entered in the journal of said court a personal judgment in favor of relator against the defendant Parker, in the case of Holgate v. Parker et al., upon a verdict heretofore rendered in that case. The application and the record show that the relator was plaintiff in an action against defendants Parker and Kirby, in which action a judgment was obtained in favor of the plaintiff for $500. Subsequently a motion was made for the vacation of the verdict and the granting of a new trial which motion was sustained by the court, and a new trial ordered. The burden of the relator's complaint is that the notice that the motion for a new trial would be made was given by defendant Kirby alone, and that, inasmuch as defendant Parker did not join in said motion, the setting aside of the verdict and the granting of the motion for a new trial did not affect him, and that he is now entitled to have judgment on the verdict entered against him.

The complete record in this case was before this court, on appeal taken by the relator from the action of the court in sustaining the motion to set aside the verdict and grant a new trial in this case. And from the whole record we are inclined to the opinion that the motion for vacation and for a new trial was treated by all the parties and by the court as a motion by the defendants, and not by one defendant alone. And we have uniformly held that we would determine a case here on the theory on which it was tried below. These defendants were represented by the same counsel and, while the notice of intention to make a motion for a new trial relates that the motion will be made by defendant Kirby, it does not indicate that the motion will be made in his interest alone, but that the motion will be made to vacate and set aside the verdict rendered in the cause; and the motion itself does not indicate by which defendant it was made, either in the motion or by the signing of the same, for it is simply signed "Murray & Carroll, Attorneys for Defendant." And it was the evident intention of the court to vacate this verdict, and grant the motion for a new trial in favor of both of the defendants; for, after reciting the incidents of the case, viz. that the verdict had been received in open court, without notifying the counsel for either party, the court concludes "that it was error prejudicial to the defendants...