State v. Superior Court of Walla Walla County

• Decision Date: 17 July 1906
• Citation: 43 Wash. 91,86 P. 205
• Parties: STATE ex rel. McCORMICK v. SUPERIOR COURT OF WALLA WALLA COUNTY et al.
• Court: Washington Supreme Court

86 P. 205

43 Wash. 91

STATE ex rel. McCORMICK v. SUPERIOR COURT OF WALLA WALLA COUNTY et al.

Supreme Court of Washington

July 17, 1906

Certiorari by the state, on relation of E. J. McCormick, against the superior court of Walla Walla county and another. Writ denied.

Brooks & Bartlett, for relator.

Lester S. Wilson, for respondent.

HADLEY J.

An application was made to this court for a writ of review directed to the superior court of Walla Walla county. The affidavit avers that the relator is the owner of certain real estate in Walla Walla county, and that on the 12th day of May, 1906, the Oregon Railroad & Navigation Company, a corporation, filed in the superior court of said county a petition for the condemnation of said land; that thereafter a notice was published, fixing the return day for the 2d day of June, 1906; that personal service of the notice was not made upon the relator, who was then and now is a resident of the state of Washington and the county of King that the relator had not actual notice of any of the proceedings in said cause until after a judgment for condemnation and appropriation was entered therein; that on said June 2d, the court proceeded to take proofs in said cause and then adjourned the hearing until June 6th; that further proofs were then taken and on the 7th day of June the judgment was entered adjudging the use for which the property is sought to be a public one, and that a public necessity exists for the taking thereof. The affidavit further sets forth, that at the same time the court ordered its clerk to issue to the sheriff of said county an open venire returnable on June 16, 1906, by which the sheriff was directed to summon 24 jurors from which a jury should be impaneled to assess the damages for the taking of said lands; that thereafter a jury of 12 men was selected from 24 who were summoned upon an open venire in pursuance of the said order, and the jury so impaneled assessed the damages. It is further alleged that theretofore the jury commissioners of said county had, as provided by law, duly drawn the names of 39 men to serve as petit jurors during the month of June, 1906, and that said jurors so drawn were summoned to appear and serve in said court on, and after the 18th day of June, 1906, and until discharged by the court; that none of said jurors so drawn were permitted to serve upon the jury impaneled to assess the damages aforesaid, and that the court thereby exceeded its jurisdiction. The record shows that due notice of this application was served upon the petitioner in the condemnation proceeding, but no appearance has been made in this court.

It is well established in this state that the adjudication as to the public use and necessity for which property is sought to be taken cannot be reviewed on appeal, under section 5645, Ballinger's Ann. Codes & St., and that the relief must be had by the writ of certiorari which our statute calls the 'writ of review.' The...