State v. Superior Court In and For Clallam County

• Decision Date: 28 March 1929
• Docket Number: 21785.
• Citation: 276 P. 98,151 Wash. 413
• Parties: STATE ex rel. GOULD et al. v. SUPERIOR COURT IN AND FOR CLALLAM COUNTY et al.
• Court: Washington Supreme Court

276 P. 98

151 Wash. 413

STATE ex rel. GOULD et al. v. SUPERIOR COURT IN AND FOR CLALLAM COUNTY et al.

No. 21785.

Supreme Court of Washington

March 28, 1929

Department 1.

Mandamus by the State of Washington, on the relation of William Gould and others, directed to the Superior Court in and for the State of Washington, County of Clallam, and another. Writ granted on condition.

Ralph S. Pierce, of Seattle, for plaintiffs.

George F. Hannan, of Seattle, and John M. Wilson, of Port Angeles for respondents.

TOLMAN J.

This is an original proceeding in this court seeking the issuance of a writ of mandate directed to the respondent judge to control his action as hereinafter indicated. The petition recites:

'That heretofore, and in the Superior Court in and for Clallam County, State of Washington, two suits were instituted against the plaintiffs for the recovery of damages for personal injuries alleged to have been suffered in an automobile accident occurring on the 20th day of May, 1928 that one of said suits was entitled Charles Lupton Plaintiff, vs. William Gould and Robert Gould, Defendants, and was numbered by the Clerk of the Superior Court of Clallam County, No. 5513; that the other of said suits was entitled Leona Case by G. W. Case her guardian ad litem vs. William Gould and Robert Gould, Defendants, and numbered by said Clerk of said Court, No. 5518.

'That each of said plaintiffs in said Complaints claimed to have been injured as a result of a collision between an automobile owned by the defendant Robert Gould and operated for his benefit by the defendant William Gould and an automobile owned and operated by the said plaintiff Charles Lupton, the said Leona Case at the time of said collision being a passenger in the automobile of the said Charles Lupton.

'That said causes, after they had been brought to issue, were, upon motion of the plaintiffs consolidated for trial; that said cases, having been so consolidated, were duly and regularly set for trial, and that the jury had been duly and regularly impanelled. * * *

'That after the jury had been impanelled, but before witnesses had been sworn on behalf of either party, negotiations were entered into between the respective parties through their respective attorneys for the compromise and settlement of said cases; that as a result of said negotiations, the said George F. Hannan, acting as attorney as aforesaid, wrote the following letter, to wit:

"Mr. C. A. Pinkham, Attorney for General Ins. Co., Wm. Gould, and Robert Gould, 1102 White Building, Seattle. Dear Sir: Re: Charles Lupton v. William Gould and Robert Gould. Re: Leona Case v. William Gould and Robert Gould.

"This confirms our settlement agreement of today on the above cases. The case of Mr. Lupton being settled for $1000.00 and the case of Leona Case being settled for $750.00. Please have drafts made payable to George F. Hannan, attorney for the respective parties.

" 'I have directed Mr. Wilson at Port Angeles to let the jury go and am enclosing herewith orders of dismissal in each case. When your releases are prepared I will have the same executed.

" 'Yours very truly,

" '(Signed) George F. Hannan.' "

" 'GFH:V

"That the Order of Dismissal referred to in said letter was as follows, to wit:

" 'The above case having been settled, it is now

" 'Ordered, that the within action be and the same is hereby dismissed with prejudice and without costs to either party.

" 'Done in open Court this -- day of December, 1928.

" '__________, Judge.'

"That in accordance with said agreement and the usual practice in such cases, the said George F. Hannan, acting as attorney as aforesaid, caused said Order of Dismissal in each of said cases to be O. K.'d by attaching thereto the following:

" 'O. K. George F. Hannan,

" 'Attorney for the Plaintiff.'

"That pursuant to said agreement the defendants, through their attorneys, caused to be issued to the said George F. Hannan as attorney for the said Charles Lupton a check in the sum of One Thousand Dollars ($1000.00), which said check was on the 30th day of November, 1928, endorsed by the said George F. Hannan and the cash obtained thereon; that at a later date the said Order of Dismissal in the said case brought by Charles Lupton was presented to the Court for signature and by said Judge signed in open Court and filed in said cause.

"That on the 19th day of January, 1929, said Order of Dismissal bearing the O. K. of the said George F. Hannan as attorney of record for the plaintiff Leona Case, was presented to the said John M. Ralston, Judge of the Superior Court of Clallam County for signature, and that the said John M. Ralston, acting as Judge as aforesaid, refused to sign said Order of Dismissal."

It is further alleged that the petitioner, defendants in the original action, now are, and at all times have been, ready and willing to comply with, and carry out, the terms of the stipulation.

An alternative writ was duly issued and served, but the respondent judge has made no...