State v. Superior Court In and For Kitsap County

• Decision Date: 22 May 1928
• Docket Number: 21182,21183.
• Court: Washington Supreme Court
• Parties: STATE ex rel. MERRITT et ux. v. SUPERIOR COURT IN AND FOR KITSAP COUNTY et al. STATE ex rel. HEATH v. SAME.

267 P. 503

147 Wash. 690

STATE ex rel. MERRITT et ux. v. SUPERIOR COURT IN AND FOR KITSAP COUNTY et al.

STATE ex rel. HEATH v. SAME.

Nos. 21182, 21183.

Supreme Court of Washington

May 22, 1928

Department 2.

Original mandamus proceeding by the State, on the relation of F. T Merritt and wife, and on the relation of Mildred L. Heath against the Superior Court in and for Kitsap County, Hon. H G. Sutton, Judge thereof. Peremptory writ issued in each case.

Huffer Hayden, Merritt, Summers & Bucey, of Seattle, for plaintiffs.

N. A. Pearson, of Seattle, for respondents.

TOLMAN J.

These cases, while not consolidated, arise out of the same state of facts, and were both submitted upon the same briefs and arguments.

It appears that on the evening of November 5, 1927, an automobile belonging to the relators Merritt, and driven by Mrs. Merritt, came into collision at the intersection of Stoneway and Fifty-First street in the city of Seattle with a car driven by one Walter G. Attwell. Conceiving that the fault lay with Attwell, the Merritts instituted an action in the superior court for King county against Attwell and wife to recover for personal injuries to Mrs. Merritt and the damages sustained by the Merritt car.

At the same time relator, Heath, who was a guest in the Merritt car at the time of the accident, instituted a like action in the same court to recover for personal injuries, which it was alleged she had sustained.

Learning that the Attwells resided or were sojourning in Kitsap county, the papers were sent there for service, whereupon the attorneys who were prosecuting the two actions were informed that the Attwells were in Jefferson county, and the papers were sent to that county, and were there served. In due time the Attwells appeared in both actions by demurrer and by answer, and accompanied their appearance with motions for a change of venue to Kitsap county on the ground that they were actually residents of that county. A sufficient showing was made, and the actions were both removed to, and docketed in, Kitsap county. Thereafter relators filed an application in each cause in the superior court for Kitsap county for a change of the place of trial to King county, on the ground 'that the convenience of witnesses in said action requires such change, and that the ends of justice would be forwarded by the change.'

The application was supported by the affidavit of relator F. T. Merritt, the material parts of which are as follows:

'That he is one of the plaintiffs in the above-entitled action and is also a member of the law firm of Huffer Hayden, Merritt, Summers & Bucey, attorneys for said plaintiffs; that, as such plaintiff and attorney, he has fully investigated the facts involved in said suit and the witnesses who will, or would be able to, testify for either party therein, and from such investigation and his personal knowledge, he says: That the plaintiffs are husband and wife, now and for many years prior hereto residing in Seattle, King county, Wash.; that the collision between the automobile of the plaintiffs and the automobile of the defendants, which is the basis for this suit, occurred at about 8:30 o'clock in the evening of November 5, 1927, at the intersection of Fifty-First street and Stoneway, two public highways in said city of Seattle; that at said time the automobile of the plaintiffs was being driven by E. S. Merritt, one of the plaintiffs, and there was then in her said automobile Mildred L. Heath, daughter of plaintiffs, and her two minor children, Mildred Jean Heath, aged three years, and Marily Louie Heath, aged two years; that defendant Walter G. Attwell was then alone in and driving the automobile of defendants, which ran into plaintiffs' automobile at said time and place.

'Affiant further says: That all of the witnesses for either plaintiffs or defendants in said action, except only the said defendant, Walter G. Attwell, reside in the city of Seattle, King county, Wash., outside of said Kitsap county, and more than 20 miles from the place of trial of said action in Kitsap county. That plaintiffs will have not less than 15 witnesses to prove the allegations of their complaint herein. Besides the plaintiff E. S. Merritt, they will have said Mildred L. Heath, an eyewitness, who lives alone in Seattle with her two small children, and she cannot conveniently nor safely take said children to Port Orchard for said trial, nor leave them in Seattle while she attended said trial. They will have another eyewitness, a boy about 12 or 14 years of age, who lives in Seattle, outside of Kitsap county, and more than 20 miles from the place of trial of said action in Kitsap county, and could not be compelled to attend as a witness in said action in Kitsap county, and undoubtedly would not be permitted to so attend.

'That plaintiffs will have several witnesses who saw both said automobiles immediately after said collision, and who can testify from their position and marks upon the pavement where and how said collision took place, which testimony would be material in proving plaintiffs' allegations of negligence on the part of defendants. Plaintiffs will have several witnesses who saw their said automobile shortly after it was so struck and before it was or could be moved, who can also give material testimony showing how and where it was struck, and tending to prove plaintiffs' allegations of negligence on the part of defendants. They will have at least four witnesses who can testify as to the damage caused to plaintiffs' automobile by said collision. They will have witnesses as to the personal injuries sustained by plaintiff, E. S. Merritt, on account of said accident, probably including one or more physicians living in Seattle. They will have several witnesses who will testify as to measurements of the streets, and places where said collision occurred, and as to photographs of said intersection, all of which will be competent and material in determining the issues involved in this action.

'Affiant cannot say at this time, nor until he hears the evidence produced by defendants in support of the denials and allegations in their

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