State v. Superior Court for Lewis County

• Decision Date: 24 November 1924
• Docket Number: 18977.
• Citation: 131 Wash. 448,230 P. 154
• Parties: STATE ex rel. CARPENTER v. SUPERIOR COURT FOR LEWIS COUNTY.
• Court: Washington Supreme Court

230 P. 154

131 Wash. 448

STATE ex rel. CARPENTER v. SUPERIOR COURT FOR LEWIS COUNTY.

No. 18977.

Supreme Court of Washington

November 24, 1924

Department 2.

Application for peremptory writ of mandamus by the State, on the relation of Mrs. C. H. Carpenter, against the Superior Court for Lewis County and W. A. Reynolds, Judge. Writ issued.

Elmer Smith, of Centralia, and Alexander Mackel of Seattle, for relator.

John H Dunbar and M. H. Wight, both of Olympia, for respondent.

HOLCOMB J.

An alternative writ of mandamus was issued herein, directed to respondent, and is before us on application for a peremptory writ.

On August 9, 1924, an affidavit of prejudice was filed by Mackel, one of the attorneys for Mrs. Carpenter in a proceeding before the department of labor and industries industrial insurance division, which had been appealed to the superior court, of which respondent is the presiding judge to disqualify respondent. The motion and affidavit for change of judge was noted for hearing on August 18, 1924, at 9:30 o'clock a. m. No resistance was made to the motion for change of judges, and the court made the following order, as appears by journal entry in the cause:

'Mrs. C. H. Carpenter, Plaintiff, vs. Department of Labor and Industries of Washington, Defendant. Cause came on regularly for hearing on motion of plaintiff for change of judge. A. Mackel appearing for plaintiff and in support of said motion; defendant not appearing or being represented by counsel. Case referred to any visiting judge the court is able to secure, probably Judge Simpson.

'[Signed] W. A. Reynolds, Judge.'

Respondent judge has filed a return to the alternative writ, setting forth among other things that, immediately upon the conclusion of the hearing upon the motion docket that day, he communicated with Judge George B. Simpson, superior judge at Vancouver, Wash., who said he would hear the motion and other motions at Chehalis on August 21, 1924, in the forenoon; that thereupon respondent at once notified Attorney Mackel that Judge Simpson would be present on the morning of August 21, 1924, to hear his motions, and to notify the defendants of the hearings; that on August 21 1924, Judge Simpson was present in the courthouse at Chehalis, ready to hear the motion, and did hear motions in two other cases, and tried and determined another case; that neither Mackel nor Smith, the other attorney in the matter, made any appearance; that later in the day of August 21, 1924, respondent saw Mackel in the courtroom and inquired why he had not appeared to call up his motions to be heard; that Judge Simpson was in the courthouse ready to consider the same; that Mackel thereupon informed respondent that he had been in the courthouse, but could not find Judge Simpson, and supposed he was not coming, and that he had returned to his office in Centralia; that respondent thereupon informed Mackel that Judge Simpson was in respondent's chambers ready to hear his motions; that available visiting judges were hard to obtain, and that when a judge was obtained it was the business of attorneys to be in attendance and have their cases heard; that Judge Simpson had gone away, and respondent was not informed as to whether he had left Chehalis permanently or not, and that respondent did not know when he could again be in Chehalis; that he communicated with Judge Simpson as to whether he could come to Chehalis to hear the matter, and Judge Simpson replied that he was so burdened with business of his own court that he would be unable to fix upon a time when he would be at liberty to come to Chehalis; that no application or request has been made by attorneys for relator to procure any...