State v. Superior Court of Pierce County

• Decision Date: 05 December 1906
• Citation: 44 Wash. 554,87 P. 814
• Parties: STATE ex rel. PORT TOWNSEND SOUTHERN RY. CO. v. SUPERIOR COURT OF PIERCE COUNTY.
• Court: Washington Supreme Court

87 P. 814

44 Wash. 554

STATE ex rel. PORT TOWNSEND SOUTHERN RY. CO. v. SUPERIOR COURT OF PIERCE COUNTY.

Supreme Court of Washington

December 5, 1906

Certiorari by the state, on the relation of the Port Townsend Southern Railway Company, to review the action of the superior court of Pierce county in entering judgment for damages, and in refusing to vacate or modify such judgment, in proceedings by relator for the condemnation of real estate belonging to Stefano Barbare and another. Application denied.

Chas Bedford and J. F. Fitch, for relator.

Walter M. Harvey, for respondent.

CROW J.

This is an original application for a writ of certiorari. The relator, a railroad corporation, alleges that on July 16 1906, it filed in the superior court of Pierce county its petition for the condemnation of certain real estate belonging to Stefano Barbare and Lecretia Barbare, his wife that in the regular course of procedure an order was made adjudging a public use; that a jury, duly impaneled, returned a verdict for $16,000 damages to be paid by the relator; that on October 3, 1906, the judge of the superior court, without notice, entered an ordinary money judgment for such damages instead of decreeing the same to be paid by the relator prior to its taking possession of the property; that immediately thereafter the relator served and filed a motion to vacate or modify such judgment; that upon the hearing of its motion the superior judge ordered the relator to forthwith elect whether it would take the property under the condemnation proceeding or refuse to take the same; that the relator declined to make any such election at that time, but stood mute, whereupon the court refused to vacate or modify the money judgment for $16,000 already entered; that the relator has appealed to this court from such judgment; that its appeal has been perfected; and that, without waiving any of its rights under such appeal, it now petitions for a writ of certiorari to review the action of the superior court in entering such original money judgment for damages, in ordering the relator to elect whether it would take the property prior to the determination of its appeal, and also in refusing to vacate or modify the judgment so entered. The respondents have demurred to the relator's affidavit, and the hearing in this court has been upon their demurrer.

The relator's attorneys candidly acknowledge themselves to be in serious doubt as to whether the relator is entitled to a writ of review, or whether the orders of which it complains may not be reviewed upon the appeal already perfected. They admit that they have presented this application out of the abundance of caution for the complete protection of the rights of their client, but upon the hearing have insisted that this court has jurisdiction to review in this proceeding the orders above mentioned. Although in Western American Co. v. St. Ann. Co., 22 Wash. 158, 60 P. 158, we held an appeal would not lie in a condemnation proceeding from an order adjudging a public use,...