State v. Superior Court for King County, 23600.

• Decision Date: 04 April 1932
• Docket Number: 23600.
• Citation: 10 P.2d 233,167 Wash. 481
• Court: Washington Supreme Court
• Parties: STATE ex rel. CLARK v. SUPERIOR COURT FOR KING COUNTY.

10 P.2d 233

167 Wash. 481

STATE ex rel. CLARK v. SUPERIOR COURT FOR KING COUNTY.

No. 23600.

Supreme Court of Washington

April 4, 1932

Department 2.

Certiorari to Superior Court, King County; Kazis Kay, Judge.

Application for certiorari by the State of Washington, on the relation of Dors H. Clark, against the Superior Court for King County Kazis Kay, Judge. On motion to quash.

Writ quashed.

G. E M. Pratt, of Seattle, for relator.

Mifflin & Mifflin and S. C. Milligan, all of Seattle, for respondent.

HOLCOMB, J.

An alternative writ of review was granted in this case directed to the trial judge of the lower court returnable on a certain day and on the return day a qualified order of review was granted continuing in force the alternative writ until a day set without prejudice to any and all defenses that might be interposed by respondent. A motion to quash had been made and was renewed on the hearing of the matter on the day set therefor, and is still pending.

From the record Before us it appears that on November 7, 1931 relator filed in the superior court a good and sufficient complaint under Rem. Comp. Stat. § 1110, and State ex rel. Southern Alaska Canning Co. v. Superior Court, 128 Wash. 100, 222 P. 203, for the transfer to the superior court of a chattel mortgage foreclosure which had been instituted by sheriff's notice of sale of chattels mortgaged by relator to one Kraft, which sheriff's sale was to take place on November 9, 1931, at 9:30 a. m.

Allegations were made apparently entitling relator to contest the amount claimed to be due under the chattel mortgage and praying that the foreclosure proceedings be transferred to the superior court.

Upon the presentation of this complaint the lower court, by Hall J., made an order that Kraft and the sheriff of King county be enjoined from proceeding with the sale of the property until the further order of the court, and that they and each of them show cause on a day appointed, if any they had, why the restraining order should not be granted as prayed and the cause transferred to the superior court for further proceedings. On November 20, 1931, relator filed an amended complaint restating, with some additions, the allegations of the original complaint and praying for the same relief. Before Kay, J., on November 12, 1931, the day appointed for the hearing of the show cause order, plaintiff appeared by her attorney, defendants appeared by their attorney, and the court, after hearing the parties and the argument of counsel, found:

'That no tender of any sum was made to the defendants prior to the commencement of this action, nor brought into court and that the principal amount loaned, according to the allegation of plaintiff, was the sum of $500.00.

'Now, therefore, it is hereby considered, ordered and adjudged that the certain order to show cause herein issued to defendants, ex parte, be and the same is dissolved and not made permanent unless the above named plaintiff shall within 20 days from date hereof, tender and pay into the registry of this court the sum of $500.00, together with interest thereon at the rate of 12% per annum from the 28th day of May, 1931, until paid.'

A copy of this order was received by the attorney for plaintiff on November 30, 1931. and an order requested by him was refused to the effect that the foreclosure be transferred to the superior court and the temporary restraining order made permanent until the further order of the court. The order above quoted was signed by the judge on December 3, 1931, and filed December 4, 1931, after a correction of an obvious typographical error had been made...