State v. Superior Court of King County

• Decision Date: 14 October 1901
• Citation: 26 Wash. 278,66 P. 385
• Court: Washington Supreme Court
• Parties: STATE ex rel. SMITH v. SUPERIOR COURT OF KING COUNTY.

66 P. 385

26 Wash. 278

STATE ex rel. SMITH v. SUPERIOR COURT OF KING COUNTY.

Supreme Court of Washington

October 14, 1901

Certiorari on the relation of C. B. Smith, to the superior court of King county (Boyd J. Tallman, J.), to review that part of an injunction order which permitted vacation of the injunction on filing bond. Remanded, with instructions to maintain the injunction.

Wm. Hickman Moore and Kerr & McCord, for relator.

Piles Donworth & Howe, for respondent.

DUNBAR J.

On the 13th day of September, 1901, the relator instituted a suit in the superior court of King county seeking to enjoin the Seattle Electric Company, a corporation, from building a trestle and elevated railway in Fourth avenue South (one of the public streets of Seattle) in front of relator's property, alleging that the trestle and elevated railway cut off the access to his said property and interfered with his light and air; said trestle being about to be constructed at a height of about 25 feet at one end of relator's property, and 15 feet at the other end of said property above the grade of the street, and occupying 25 feet in the middle of said street; the street being 66 feet wide. A restraining order was issued by the superior court of King county and the respondent, Hon. Boyd J. Tallman, one of the judges thereof, prohibiting said company from building said railway and trestle in said street in front of relator's property until the further order of the court, and fixing the 17th day of September, 1901, as the time at which defendant should show cause, if any it had, why injunction pendente lite should not issue of tenor similar to the restraining order. On the 17th day of September, 1901, the hearing of said matter was continued until the 18th day of September, at which time, both parties to said action being present and represented in court, a hearing was had upon complaint answer, reply, and affidavits; and, the matter having on said day been submitted to the court for its decision, it thereafter, to wit, on the 23d day of September, 1901, made the following statement and order: 'And now, the court having duly considered the complaint, answer, reply, affidavits, and exhibits, and it appearing to the court therefrom that the plaintiff and his property will sustain damage from the construction of the said structure, it is by the court ordered that the defendant, its servants, agents, and employés, be, and are hereby, temporarily during the pendency of this action, until otherwise ordered by the court, enjoined and restrained from entering upon the street in front of plaintiff's property described in the complaint for the purpose of erecting or constructing the trestle and tracks mentioned in the complaint herein, or in any manner interfering with the plaintiff's right of access to said property over and along said street, or from in any way interfering with the free use of said street by the plaintiff, and his access to said property: provided, that this temporary injunction shall cease to be operative upon the defendant's executing and filing in court a bond running in favor of the plaintiff in the penal sum of $30,000, which bond shall be executed also by the American Surety Company of New York, a surety corporation authorized to do business in the state of Washington, and shall be conditioned that the defendant will well and truly pay to the plaintiff any and all damages which the plaintiff may suffer or incur by reason of the construction of the trestle, railway tracks, and structures erected and to be erected by the defendant in Fourth avenue South, in the city of Seattle, in front of the property described in the complaint; and, when said bond so executed shall be filed in the office of the clerk of this court, this injunction shall thereupon become void.' To that portion of the order commencing with the word 'provided' the relator excepted, and asked this court for a writ of review. The temporary writ was ordered, the superior court answered, and a final hearing was had in this court on the 4th day of October, 1901.

The argument of counsel in this case covered a good many points, but there are, as we view it, but two controlling questions: (1) Has this court jurisdiction to issue the writ of certiorari in a case of this kind? And, (2) if it has such jurisdiction, has the petitioner presented facts sufficient to warrant the issuing of the writ?

Section 5741, 2 Ballinger's Ann. Codes & St., is as follows 'A writ of review shall be granted by any court, except a police or justice court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court any plain, speedy and adequate remedy at law.' It is insisted by the respondent that under the provisions of this section, which embraces the law governing the issuance of the writ, this court is without jurisdiction to issue the writ; that it is not sufficient to warrant the issuance of the writ that the proceedings of the tribunal which are sought to be reviewed are in excess of the jurisdiction of such tribunal, or illegal or erroneous or void, or not according to the course of the common law, but that all of these conditions must exist concurrently before the writ can issue; that is to say, it must appear that there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy at law; and it is insisted that there is both an appeal and a plain, speedy, and adequate remedy at law, because the statute provides that a party aggrieved may appeal as follows: '(1) From the final judgment entered in any action or proceeding, and an appeal from any such final judgment shall also bring up for review any order made in the same action or proceeding either before or after the judgment, in case the record sent up on the appeal or any supplementary record sent up before the hearing thereof, shall show such order sufficiently for the purposes of a review thereof. (2) From any order refusing to vacate an order of arrest in a civil action. (3) From an order granting or denying a motion for a temporary injunction, heard upon notice to the adverse party, and from any order vacating or refusing to vacate a temporary injunction: provided, that no appeal shall be allowed from any order denying a motion for a temporary injunction, or vacating a temporary injunction unless the judge of the superior court shall have found upon the hearing, that the party against whom the injunction was sought was insolvent.' It is contended that, therefore, the right to appeal is expressly given to the plaintiff in the case at bar, and that it is not sufficient that there should not exist an immediate right of appeal. Many cases are cited by the respondent to sustain this contention, but we do not think they are pertinently cited. This court has held in a long line of recent cases that the extraordinary writs of certiorari, prohibition, and mandamus will not issue to correct the action of the superior court when the court is acting erroneously, either with or without jurisdiction, but always with the provision that there is an adequate remedy by appeal. This adequate remedy has not been construed to be as speedy a remedy as the remedy by extraordinary writ might be, but a remedy which preserves the fruits of the appeal when won. In other words, the status quo of the parties litigant must be preserved, and, if by awaiting the result of an appeal the fruits of the litigation would be lost, the remedy has not been considered an adequate remedy. Section 4, art. 4, of the constitution of Washington, after reciting the original jurisdiction of the supreme court, says further: 'The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction.' In pursuance of the power conferred upon this court by this provision of the constitution, we have uniformly refused to relegate litigants to the right of appeal when it appeared that such appeal would be barren in its results, no matter how it eventuated. This court had occasion to construe this section of the constitution in State v. Board of Education, 19 Wash. 8, 52 P. 317, 40 L. R. A. 317, 67 Am. St. Rep. 706, and compelled the superior court to allow a bond that would stay execution and supersede the judgment rendered, for the very reason that an appeal would not be an adequate remedy. It said: 'It is conceded that an appeal lies from the judgment of the court in quashing the writ, and, under the provision just read, for the purpose of making that appeal effective, and to insure the complete exercise of this court over that appeal, it becomes necessary and proper to supersede the judgment, otherwise the right to appeal which the statute has given would be of no avail to the appellant, for if the board of directors in the meantime were to proceed to remove him, when the case finally reached this court on appeal, it would have to be dismissed for want of merit, because the trial on merit would already have terminated. * * * We think this is exactly the kind of a case which is contemplated by the constitution, and that the only way that this court could maintain the complete exercise of its appellate jurisdiction would be by issuing the writ prayed for. There would be no meaning to the provision of the constitution, and no necessity for it, if it could only be held to apply to cases where supersedeas was provided for by the law.' ...