State v. Superior Court for King County

• Decision Date: 05 April 1915
• Docket Number: 12628.
• Citation: 147 P. 408,84 Wash. 663
• Parties: STATE ex rel. JAKUBOWSKI et ux. v. SUPERIOR COURT FOR KING COUNTY.
• Court: Washington Supreme Court

147 P. 408

84 Wash. 663

STATE ex rel. JAKUBOWSKI et ux. v. SUPERIOR COURT FOR KING COUNTY.

No. 12628.

Supreme Court of Washington

April 5, 1915

Department 2. Original application for writ of certiorari by the State of Washington, on relation of Adam Jakubowski and wife against the Superior Court of King County. Denied.

Jay C Allen, of Seattle, for respondent.

MAIN J.

This is an original application in this court for a writ of certiorari. On January 23, 1911, the relators made, executed, and delivered to one Joseph Kraus a mortgage upon certain real estate in King county, Wash., to secure the principal sum of $2,500; and on January 4, 1912, a second mortgage between the same parties and upon the same real estate was executed to secure the principal sum of $500. On May 19, 1914, the mortgagee, Joseph Kraus, filed his complaint in the superior court for King county praying for a foreclosure of both mortgages, and also:

'That the said plaintiff, or any of the other parties to this suit, may become a purchaser at such sale, and that the sheriff issue a deed to such purchaser, and that such purchaser be let into the immediate possession of said premises upon the confirmation of such sale by the court herein.'

The relators in their amended answer to the complaint in foreclosure set up affirmatively that they claimed the premises covered by the mortgages as their homestead. The plaintiff by reply denied the affirmative matter pleaded in the amended answer. On the issues framed the trial court on October 10, 1914, made findings of fact and conclusions of law in favor of the plaintiff, and among other things concluded:

'That any party to this action may become a purchaser at said sale, and that the purchaser be let into the immediate possession of the premises.'

On the same date a decree of foreclosure was entered and, in the same language as heretofore quoted, it was decreed that the purchaser be let into the immediate possession of the premises.

On November 28, 1914, the sheriff of King county sold the premises described in the mortgages to Joseph Kraus, the plaintiff, who demanded of the relators the immediate possession, which they refused. On December 12, 1914, an order confirming the sale was entered. On December 30, 1914 the plaintiff filed in the superior court his petition for a writ of assistance. On the same day the court entered an order directing that a writ of assistance issue to the sheriff of King county to put the plaintiff, and Pasquale Picardo, who had obtained an interest in the property from the plaintiff under the certificate of purchase, into possession of the premises. The writ was on the same day issued. On January 4, 1915, the relators filed in the superior court their petition wherein they prayed that the writ of assistance be quashed and that they be allowed to remain in the possession of the premises during the year provided by law for the redemption thereof. Thereupon an order was entered fixing January 8, 1915, as the date for hearing the petition to quash the writ of assistance, and pending the hearing the writ was recalled and the sheriff ordered to withhold execution thereunder.

On January 4, 1915, a written declaration of homestead, signed by the relator Anna Jakubowski, wherein the premises involved were...