State v. Superior Court of Washington for Skagit County

• Decision Date: 02 April 1919
• Docket Number: 15244,15245.
• Court: Washington Supreme Court
• Parties: STATE ex rel. SCHLOSBERG v. SUPERIOR COURT OF WASHINGTON FOR SKAGIT COUNTY. STATE ex rel. LEOPOLD v. SAME.

179 P. 865

106 Wash. 320

STATE ex rel. SCHLOSBERG v. SUPERIOR COURT OF WASHINGTON FOR SKAGIT COUNTY.

STATE ex rel. LEOPOLD v. SAME.

Nos. 15244, 15245.

Supreme Court of Washington, En Banc.

April 2, 1919

Applications for certiorari or mandamus by the State, on the relation of Bertha W. Schlosberg and of Walter M. Leopold, against the Superior Court of Washington for Skagit County. Applications denied.

Coleman & Gable, of Sedro Woolley, for defendant.

HOLCOMB J.

These two applications made to this court were consolidated for hearing and determination. The applications were for a writ of certiorari or a writ of mandamus in each case as to this court might seem most meet. Demurrers were interposed to the applications, and special appearances and motions to quash were made in each case, objecting to the jurisdiction of the court to grant the relief prayed. Relators, respectively commenced actions in the superior court for Spokane county in September, 1918, against J. H. Livermore and wife, as defendants, for damages for personal injuries. Upon the service of the summons and complaints the defendants appeared in the superior court for Spokane county and moved for a change of the place of trial of the actions upon the ground supported by affidavits, that they were at the time of the service of the summons and complaints, and at the time of the motion, not residents of Spokane county, Wash., but were residents of Skagit county, Wash., and that the summons and complaints were served upon them in Skagit county, and that the proper place for the trial of the actions was in Skagit county, and supported the same by an affidavit in each instance of a meritorious defense.

Upon hearing the motion for a change of place of trial in the superior court for Spokane county the residence of the defendants in Skagit county was not denied, and was not in issue, but the plaintiffs in each case put in issue a question of the convenience of witnesses in the event that the cases were transferred to Skagit county, and that such convenience of the witnesses and the ends of justice required that the cases should not be transferred to Skagit county, but retained for trial in Spokane county. Upon the showing made the superior court for Spokane county ordered that the place of trial in such case be changed to Skagit county, upon the ground that the defendants in each case had a right to the change to the county of their residence and that all other proceedings in each case be had in Skagit county, 'unless a change of venue is granted by the superior court for Skagit county.'

Upon the case being transferred to Skagit county, the plaintiffs in each case appeared and moved that the place of trial of the actions be changed from Skagit county to Spokane county, upon the following grounds and reasons:

'(1) For the convenience of witnesses, and that the ends of justice will be forwarded by the change;

'(2) That there is reason to believe, and the plaintiffs do believe, that an impartial trial cannot be had in Skagit county.'

This motion was based upon affidavits in support thereof, and the defendants in the cases made counter showing by affidavits. The superior court for Skagit county denied the change of venue to Spokane county, holding that as a matter of right, under sections 207, 208, Rem. & Bal. Code, the defendants had the right to have the trial of the cases in the county of their residence.

The relators in behalf of their applications make a showing that the accident for which damages are sought occurred in Spokane county; that a large number of necessary and important witnesses in their behalf reside in that county, and would refuse to attend the trial in Skagit county, and could not be compelled to attend personally outside of their county and 20 miles beyond, and that for those whose attendance they could secure the cost of mileage alone for each witness between Spokane and Mt. Vernon, the county seat of Skagit county, would be not less than $68.20, aside from attendance fees; that a number of expert witnesses, particularly physicians of large practice in the city of Spokane, cannot be compelled to attend the trial in Skagit county; that, in case their personal attendance could be secured, they would be entitled to fees as expert witnesses, and it would be very expensive and practically prohibitive for the plaintiffs to procure their personal testimony at the place of trial; and that the plaintiffs in each case have small means, and the ends of justice would be defeated by requiring them to litigate their actions in Skagit county, 341 miles by the shortest route from Spokane.

The trial court conceded that by far the greater number of witnesses would be accommodated by...