State v. Superior Court, King County
| Decision Date | 16 September 1920 |
| Docket Number | 15777. |
| Court | Washington Supreme Court |
| Parties | STATE ex rel. McWHORTER v. SUPERIOR COURT, KING COUNTY. |
Department 2.
Application by the State, on the relation of L. V. McWhorter, against the Superior Court for King County, Everett Smith, Judge, to review a denial of relator's application for change of venue. Proceedings in trial court affirmed.
Bell & Thompson, of Tacoma, for plaintiff.
Robert M. Jones, of Seattle, for defendant.
It appears from the affidavit for and the return to a writ of review in this case that Charles D. Davis commenced an action in the superior court of King county against L. V. McWhorter for malicious prosecution. The summons and complaint were served upon him in that county. Within 20 days McWhorter appeared in the cause and filed a motion for a change of venue to the superior court of Yakima county, upon affidavit proof that he was, and for more than a year had been, a resident of Yakima county. Before the motion was presented to the court, Charles D. Davis caused to be filed in the case an affidavit, alleging that the action was one for malicious prosecution growing out of his arrest and prosecution in King county at the instance of McWhorter upon a criminal complaint before one of the justices of the peace of Seattle precinct, King county; that in so doing McWhorter acted in his capacity as an officer of the state humane bureau of this state; that the action for malicious prosecution was brought for acts done by McWhorter in virtue of his office and as a public officer, and that all the witnesses competent to testify in the action were residents of King county. At the time of presenting the affidavit Davis made an oral application for leave to amend his complaint to set up the true facts as declared in his affidavit. The two applications were presented to the court at the same time. The motion for a change of venue was continued to a future specified date, and the application of Davis to amend his complaint was granted. Prior to the date to which the motion for a change of venue was finally continued, Davis made and filed an amended complaint entitled 'Charles D. Davis, Plaintiff, v. L. V. McWhorter, Agent of the State Humane Bureau, Defendant,' wherein, in addition to allegations similar to those in the original complaint, he alleged that McWhorter was and is a qualified and acting public officer of the state of Washington, to wit, an agent of the state humane bureau, and that acting under color of and in virtue of his office as such agent of the state humane bureau he appeared before a justice of the peace for Seattle precinct in King county, and charged the plaintiff with the offense of cruelty to animals, alleging such offense to have been committed at Seattle, Wash. Thereupon the trial court made and entered an order denying the motion for a change of venue.
It is contended on behalf of the relator that he was entitled to have his motion for a change of venue granted, not as a privilege, but as a matter of right, and a number of cases from this court, as late as State ex rel. Poussier v Superior Court, 98 Wash. 565, 168 P. 164, are submitted in support of the argument. In transitory actions, such as the original complaint in the cause in the superior court was, it is the general policy or rule of the law that the action must be tried in the county where the defendant resides. Rem. Code, § 207. The next section of the statute (208) provides, if the county in which such action is commenced is not the proper one, the action may still be tried therein, unless the defendant properly and seasonably demands that the trial be had in the proper...
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