State v. Superior Court for Klickitat County

• Decision Date: 29 November 1920
• Docket Number: 16087.
• Court: Washington Supreme Court
• Parties: STATE ex rel. REDLINGER v. SUPERIOR COURT FOR KLICKITAT COUNTY et al.

193 P. 676

113 Wash. 244

STATE ex rel. REDLINGER v. SUPERIOR COURT FOR KLICKITAT COUNTY et al.

No. 16087.

Supreme Court of Washington

November 29, 1920

Department 1.

Petition for writ of prohibition by the State of Washington, on the relation of Earl E. Redlinger, against the Superior Court for the County of Klickitat; N. B. Brooks, Judge. Application denied.

Chas F. Bolin, of Toppenish, for relator.

John R McEwen, of Goldendale, for respondents.

HOLCOMB, C.J.

This is a petition for a writ of prohibition.

The State Bank of Goldendale, Wash., in July, 1920, began an action in the superior court for Klickitat county, against the relator, Redlinger, the plaintiff bank's complaint alleging that it was the payee of a certain promissory note in the sum of $9,000, made by one Beeks, secured by a chattel mortgage given to the plaintiff bank on live stock, the property of Beeks; that Beeks paid some $4,853.40 on the note; that the balance was due; that thereafter, and before any foreclosure of the chattel mortgage, Redlinger took 90 head of the mortgaged cattle from the county of Klickitat to the county of Yakima, where he sold them and converted the proceeds to his own use; that Redlinger, at such time, 'personally knew' of the mortgage. The complaint prayed for a money judgment against Redlinger in the sum of $4,147.60.

The affidavit in support of relator's motion for the writ of prohibition recites, among other things:

'That, after the service of the complaint upon the defendant, Earl E. Redlinger, he appeared in said action by and through his attorney, your affiant herein, and made demand for change of venue, accompanying the same with a motion for a change of venue and affidavit of merits for change of venue, the same being prepared on the 22d day of July, 1920, which said notice, affidavit and demand were served upon the opposing counsel and filed in the office of the clerk in Klickitat county, Wash., at the same time a notice of argument was noticed for hearing on the 16th day of August, 1920, the motion being based on the defendant's residence.

'That, at said time of said hearing, there had been no counter affidavits filed, controverting the residence of said defendant, Earl E. Redlinger, and that, at the time of arguing said motion, the defendant did not appear in person or by his said counsel, but that plaintiff did appear by its counsel and insisted that the matter was not properly before the court, for the reason that a demurrer or answer did not accompany said demand for change of venue. The then presiding judge, William Darch, believing the point well taken, made and entered an order denying said demand for change of vanue, a copy of which said order is hereto attached.

'That thereafter the then presiding judge, William Darch made and entered an order of default adjuding the defendant, Earl E.Redlinger, in default for failure to plead.

'That thereafter, this defendant, Earl E. Redlinger, appeared before the said William Darch, moved that the said default be set aside and the change of venue granted on the grounds that the court had not jurisdiction to enter said default and that the same be set aside and the change of venue granted. The order of default being set aside on terms, the motion for rehearing and a change of venue was continued to the 3d day of September, 1920. In the meantime William Darch's resignation had taken effect, and N. B. Brooks, having heretofore been appointed judge by the Governor of this state and had duly qualified, was presiding when said motion for rehearing change of venue was presented, and after hearing of argument said motion was denied by said judge, at which time he refused and still refuses to change the venue.'

From the respondent's affidavit, supporting his return to the alternative writ, we gather that, after the relator's motion for a rehearing had been denied, the relator objected to the sufficiency of the attachment bond filed in the cause, and asked for an order requiring the plaintiff bank to file a new bond, which order was granted.

The respondent urges that all of the appearances made by the relator, asking for affirmative relief, were made after the relator's motion for change of venue had been denied; that they were all general, and not special, appearances; and that the relator had thereby waived his right to question the jurisdiction of the superior court.

The argument of the respondent, in denying the motion for change of venue, is that, after the denial of such motion, instead of questioning the order of dismissal by an...