State v. Superior Court of Spokane County

• Decision Date: 25 November 1905
• Citation: 82 P. 877,40 Wash. 555
• Court: Washington Supreme Court
• Parties: STATE ex rel. MILLER et al. v. SUPERIOR COURT OF SPOKANE COUNTY et al.

82 P. 877

40 Wash. 555

STATE ex rel. MILLER et al. v. SUPERIOR COURT OF SPOKANE COUNTY et al.

Supreme Court of Washington

November 25, 1905

Application for prohibition by the state, on the relation of Valentine Miller and another, against the superior court of Spokane county and H. L. Kennan, Judge. Application denied.

Zent &amp Lovell, for petitioners.

Belt &amp Powell, for respondent.

RUDKIN J.

J. A Harris commenced an action in the superior court of Spokane county to recover a money judgment against Valentine Miller George Zier, and Conrad Kissler. The defendants Miller and Zier appeared in the action and filed a demurrer, an affidavit of merits, and a motion for change of venue to the superior court of Adams county. This motion was supported by the affidavit of the defendant Miller, to the effect that he was a resident of Adams county at the time of the commencement of the action, and was served with process there; by the affidavit of the defendant Zier, to the effect that he was a resident of Lincoln county at the time of the commencement of the action; and by the affidavit of one of their attorneys, to the effect that all of the defendants were nonresidents of Spokane county, and were actual residents of either Lincoln or Adams county at the time of the commencement of the action. The motion for a change of venue was denied, and the defendants Miller and Zier have applied to this court for a writ of prohibition restraining the superior court of Spokane county from further proceeding in the cause, on the ground that it has no jurisdiction.

In State ex rel. Cummings v. Superior Court, 5 Wash. 518, 32 P. 457, 771, State ex rel. Campbell v. Superior Court, 7 Wash. 306, 34 P. 1103, State ex rel. Allen v. Superior Court, 9 Wash. 668, 38 P. 206, and State ex. rel. Stockman v. Superior Court, 15 Wash. 366, 45 P. 395, this court held that where a defendant was sued in a transitory action in a county other than the county of his residence, and appeared in the action and filed a proper application for a change of venue, the filing of such application ousted the court of jurisdiction; and that this court would issue a writ of prohibition to restrain further proceedings in that court. If these decisions are followed in this case, it will be incumbent on us to consider the merits of the application for a change of venue; otherwise, not. In State ex rel. Light Co. v. Superior Court, 20 Wash. 502, 55 P. 933, this court reviewed at length its former decisions relating to the extraordinary writs of mandamus and prohibition, and in effect overruled many of them. In that case it was distinctly held that the fact that a court refuses to entertain jurisdiction where jurisdiction is conferred by law, or threatens to assume jurisdiction where jurisdiction is denied by law, is not of itself sufficient to warrant the issuance of a writ of mandamus or prohibition from this court. The adequacy of the remedy by appeal, or in the ordinary course of law, is there declared to be the true test in all cases, and not the mere question of jurisdiction or lack of jurisdiction. State ex rel. Light Co. v. Superior Court has been followed and approved in many subsequent cases ( State ex rel. Barbo v. Hadley, 20 Wash. 520, 56 P. 29; State ex rel. McIntyre v. Superior Court, 21 Wash. 108, 57 P. 352; State ex rel. Washington Dredging & Improvement Company v. Moore, 21 Wash. 629, 59 P. 505; State ex rel. Hibbard v. Superior Court, 21 Wash. 631, 59 P. 505; State ex rel. Lewis v. Hogg, 22 Wash. 646, 62 P. 143; State ex rel. Cann v. Moore, 23 Wash. 115, 62 P. 441; State ex rel. Hubbard v. Superior Court, 24 Wash. 438, 64 P. 727; State ex rel. Stratton v. Tallman, 25 Wash. 295, 65 P. 545; State ex rel. Stratton v. Tallman, 29 Wash. 317, 69 P. 1101; State ex rel. Carrau v. Superior Court, 30 Wash. 700, 71 P. 648; State ex rel. Zent v. Superior Court, 30 Wash. 702, 71 P. 647; State ex rel. Post v. Superior Court, 31 Wash. 53, 71 P. 740; State ex rel. Port Orchard Investment Co. v. Superior Court, 31 Wash. 410, 71 P. 1100; State ex rel. Stetson & Post Mill Co. v. Superior Court, 32 Wash. 498, 73 P. 479; State ex rel. Twigg v. Superior Court, 34 Wash. 643, 76 P. 282; State ex rel. West Seattle v. Superior Court, 36 Wash. 566, 79 P. 29), and is now the established rule on the questions there discussed.

Has the relator an adequate remedy by appeal? As a general rule, the Legislature of this state has deemed an appeal from the final judgment an adequate remedy for the correction of all errors committed in the course of a trial, and ordinarily an erroneous ruling on a question of jurisdiction is no exception to this general rule. Had the court below ruled that the complaint stated a cause of action, or denied a motion to quash the summons or the service thereof, it would be just as important to the relators, and just as desirable from their standpoint, to obtain a ruling from this court on these questions in advance of the hearing on the merits, as in the case at bar. Yet all will concede that such questions can only be reviewed on an appeal from the final judgment. As said by the Supreme Court of Montana on a similar application in State v. Smith, 58 P. 867: 'If the writ be proper on the present application, then it might well be invoked to review any intermediate order or decision of a court or judge, such as an order overruling a demurrer to a complaint, or striking out irrelevant matter from a pleading, or granting or refusing a motion to quash a summons, or granting or denying a continuance. Mandamus may not thus be diverted from its...