State v. Superior Court of King County

• Decision Date: 25 February 1922
• Docket Number: 17036.
• Citation: 204 P. 783,118 Wash. 674
• Court: Washington Supreme Court
• Parties: STATE ex rel. GRAYS HARBOR COMMERCIAL CO. v. SUPERIOR COURT OF KING COUNTY et al.

204 P. 783

118 Wash. 674

STATE ex rel. GRAYS HARBOR COMMERCIAL CO. v. SUPERIOR COURT OF KING COUNTY et al.

No. 17036.

Supreme Court of Washington

February 25, 1922

Department 2.

Original application for a writ of prohibition by the State, on the relation of the Grays Harbor Commercial Company, against the Superior Court of King County and Hon. A. W. Frater, Judge and another, prohibiting the court from proceeding further in an action, and asking that court be directed to grant a change of venue. Writ granted in part, and denied in part.

Parker C.J., dissenting in part.

John C. Hogan, of Aberdeen, for plaintiff.

Gates &amp Helsell, of Seattle, for defendants.

MACKINTOSH J.

One McVeety began an action in the superior court of King county against the Grays Harbor Commercial Company, a corporation by service of a summons. The action was a transitory one, based on breach of a contract for the purchase of machinery. The matter is before this court on an application for a writ of prohibition, prohibiting the superior court of King county from proceeding farther with the action, and asking that that court be directed to grant a change of venue. The ground upon which the writ is asked is that the Grays Harbor Commercial Company, a foreign corporation, was not transacting business, nor did it transact any business at the time the cause of action arose, in King county; that it had no office in King county, nor any person residing in that county upon whom process could be served. Affidavits were presented on the question, an examination of which satisfies us that the relator's contention as to the facts is correct. From these affidavits it appears that the office which McVeety claimed was being conducted in King county by the relator was an employment office, run as a branch of the city and federal employment agencies, and that the person in charge of that office was not an employee of the relator; that the only connection of that office with the relator was to direct men seeking work to the mill of the Grays Harbor Commercial Company, situated in Grays Harbor county, the relator keeping the agency informed as to what men it needed and the sort of work they would be required to do. For this service the relator paid a consideration to the city and federal employment agency, in accordance with the terms of the contract between them.

This business arrangement did not constitute the city and federal employment office an employee of the relator, nor did it constitute a transacting of business in King county, nor did it make the office of the employment agency an office of the relator for the transaction of business. The relator is merely one of the patrons of the employment agency, which was a free employment office maintained by the city of Seattle and the federal government; the relationship of the employment office to the Grays Harbor Commercial Company being that of an independent contractor. See State ex rel. Seattle v. Superior Court, 86 Wash. 657, 150 P. 1149; State ex rel. Wells Lumber Co. v. Superior Court, 113 Wash. 77, 193 P. 229; State ex rel. American Savings Bank, etc., Co. v. Superior Court (Wash.) 198 P. 744.

The cases of Hayworth v. McDonald, 67 Wash. 496, 121 P. 984, and Willapa Power Co. v. Public Service Commission, 110 Wash. 193, 188 P. 464, are cases where the court sustained the presumption of jurisdiction, and do not conflict with the holdings of the cases just cited. The cases of Strandall v. Alaska Lumber Co., 73 Wash. 67, 131 P. 211, and Cohagen v. Big Bend Land Co., 109 Wash. 404, 186 P. 1070, decide that certain acts there done constituted the 'transaction of business.'

The question arises whether this court will do more than prohibit the lower court from proceeding; that is, whether it will compel the lower court to change the venue of the action. We have held, in actions against individuals begun in the wrong county, where the defendants were entitled to a change of venue, that prohibition would lie to compel the transfer to the proper county.

State ex rel. Owen v. Superior court, 110 Wash. 49, 187 P. 708. But a distinction has been drawn between the right of change of venue which an individual has who is sued in the wrong county, and the right which a corporation has against which an action has been brought in the wrong county. This court--in McMaster v. Advance Thresher Co., 10 Wash. 147, 38 P. 760; Hammel v. Fidelity Mutual Aid Ass'n, 42 Wash. 448, 85 P. 35; Whitman County v. United States Fidelity Co., 49 Wash. 150, 94 P. 906; Richman v. Wenaha Co., 74 Wash. 370, 133 P. 467; and Davis-Kaser Co. v. Colonial, etc., Ins. Co., 91 Wash. 383, 157 P. 870--has held that, where the action against a corporation has been commenced in the wrong county, the court of that county has acquired no jurisdiction of such corporation, and that, that being true, the court would not have jurisdiction to make an order changing the venue. As we said in McMaster v. Advance Thresher Co., supra:

'It may be that there is no reason for this distinction, but it seems to have been the will of the Legislature to create such a distinction, and the duty of the court is to construe the law as the intention seems reasonably to have been expressed by the Legislature. This construction, it seems to us, cannot to avoided, and it follows that the court in Garfield county was without jurisdiction to pronounce judgment, and the judgment and all the proceedings,

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