State v. Superior Court of Grant County

• Citation: 166 P. 630,97 Wash. 358
• Decision Date: 21 July 1917
• Docket Number: 14019.
• Parties: STATE ex rel. MARTIN et al. v. SUPERIOR COURT OF GRANT COUNTY.
• Court: United States State Supreme Court of Washington

166 P. 630

97 Wash. 358

STATE ex rel. MARTIN et al. v. SUPERIOR COURT OF GRANT COUNTY.

No. 14019.

Supreme Court of Washington

July 21, 1917

Original prohibition proceeding by the State, on the relation of H. N Martin and another, against the Superior Court of Grant County. Writ granted.

M. E Jesseph, of Davenport, for relator.

Daniel T. Cross, of Ephrata, for respondent.

CHADWICK J.

On the 3d day of January, 1917, M. H. Sorrell and wife brought an action in the superior court of Grant county against H. N Martin and Amanda V. Martin, his wife. It is alleged in the complaint that Sorrell and wife executed a mortgage upon certain real estate in Grant county to secure a promissory note due and payable to H. N. Martin, that the note and mortgage were given without any consideration, and praying that the court decree that the note and mortgage be surrendered for cancellation. Martin and wife are now, and have been for 25 years last past, residents of Lincoln county, Wash., and were served personally in that county. They appeared in the action by demurrer and motion to change the venue of the action from Grant county Lincoln county. The motion to change the venue was accompanied by sufficient affidavit of merit. The judge presiding in the court below overruled the motion for change of venue, holding that the action was a local action, and, notwithstanding the residence of the defendants in another county, the case was trible in the place where the land is situated. Martin and wife then applied to this court for a writ of prohibition and, upon a rule to show cause, the facts as we have thus detailed them were made to appear.

The respondent insists that this court should not and cannot, under the authority of the doctrines to which the court has attached itself, hear the petition of the relators; that, notwithstanding the fact that they may be residents of Lincoln county, and may be entitled to a change of venue, the question may be raised upon appeal; and that the court will not review the error of the court below by the issuance of an extraordinary writ. Respondent bases this contention squarely upon the case of State ex rel. Miller v. Superior Court, 40 Wash. 555, 82 P. 877, 2 L. R. A. (N. S.) 395, 111 Am. St. Rep. 925. It is insisted by the relator that the court has so modified the doctrine of the Miller Case, in State ex rel. Wood v. Superior Court, 76 Wash. 27, 135 P. 494, and in State ex rel. Hopman v. Superior Court, 88 Wash. 612, 153 P. 315, that the writ will issue.

Whether this court will anticipate and review errors of the trial court upon such questions as inhere in the record, which may be heard on appeal, is one that has sorely perplexed the judicial mind, and much confusion has crept into our cases. But it would seem that the doctrine of State ex rel. Miller v. Superior Court, supra, 'The adequacy of the remedy by appeal, or in the ordinary course of law, is there declared ( State ex rel. Townsend Gas Co. v. Superior Court, 20 Wash. 502 ) to be the true test in all cases, and not the mere question of jurisdiction or lack of jurisdiction.'

Hence the inquiry whether the remedy by appeal is adequate, or whether that question, when coupled with a question of jurisdiction is enough to sustain the writ, is not foreclosed. Our statute provides:

'The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.'

'It may be issued * * * in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.'

Rem. Code, §§ 1027, 1028.

In State ex rel. Miller v. Superior Court the court puts the inquiry, 'Has the relator an adequate remedy by appeal?' and proceeds:

'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.'

But if it be held that a court, having jurisdiction, may erroneously exercise that jurisdiction, and that its rulings might be adequately reviewed on appeal, it does not follow that the court may so proceed in all cases without denying to a litigant that speed and adequacy of remedy which is sanctioned and guaranteed by the statute. The Miller Case was, as this one is, a petition for a writ, where the court had refused to change the venue of a case to another county. The court did not go beyond the prior decisions of this and other courts, declaring the general rule that the first test in issuing such writs is to ask whether a remedy by appeal will be speedy and adequate. It was held that the remedy by appeal was adequate. It would seem that to determine the question, as it applies to cases involving the right to change the venue of a case, we should first consider the statutes under which a change of venue may be had, and their legal effect as determined by this court.

Under sections 207, 208, and 209, Rem. Code, one who is sued in a county other than that of his residence is entitled to a change of venue, if the action be a transitory one. While it may in general terms be referred to as a privilege, the claim for a change of venue, when once asserted, no question of fact being involved, and no discretion of the court invoked, is more than a privilege; it is a right. It has been so held whenever and wherever this court has been called upon to pass upon the question. State ex rel. Griffith v. Superior Court, 164 P. 516; State ex rel. Stockman v. Superior Court, 15 Wash. 366, 46 P. 395; Smith v. Allen, 18 Wash. 1, 50 P. 783, 39 L. R. A. 82, 63 Am. St. Rep. 864; State ex rel. Schwabacher Bros. & Co. v. Superior Court, 61 Wash. 681, 112 P. 927, Ann. Cas. 1912C, 814; State ex rel. Stewart & Holmes Drug Co. v. Superior Court, 67 Wash. 321, 121 P. 460; 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; 4 Encl. P. & P. 440.

It would seem, if the statute grants a right that does not depend upon the merit of the case, but is independent of the merit of the case, that a litigant should not be put to the hazard, delay, and expense of a trial upon the merits as a prerequisite to the assertion of the right. In such cases the court is called upon to deal with something more than 'simply a law of procedure and practice,' as was held by Judge Dunbar, and properly so, considering the record in the case of State ex rel. Townsend Gas & El. L. Co. v. Superior Court, 20 Wash. 502, 55 P. 933. It is a right made equivalent to the right to fix the venue of a local action under the statute, and, when asserted, should not be thrust aside as an incident or an error, to be heard upon an appeal from a judgment on the merits. The term 'speedy and adequate,' when applied to remedies, means, or ought to mean, a remedy adequate and timely to review the particular error relied on, and not merely a remedy which depends upon a proper determination of the issue as defined by the pleadings, and such questions of practice and procedure as may arise in bringing the case to issue, and trying out the facts.

Wherefore it may be said, where there is a right to a trial in a particular place, which right is independent of the issue as tendered by the complaint, an adequate remedy means a trial in the first instance by a court having jurisdiction to hear and determine the merits. To rule otherwise would bring us to a holding that, although the right to a change depended in no way upon a controverted fact of residence, the defendant would have to meet the delay and expense of a trial, and possibly suffer a judgment (if he have clever counsel, he would stand mute and make no defense to the merits), which we would be willing to sustain, if we were free to do so. Before we could even consider the merit of the case, we would have to decide the question of venue, or the question of jurisdiction, and do that which ought to have been done in the first place--remand, with directions to change the venue and retry the case; and for the reason that the court did not have jurisdiction. If we would have to so hold on appeal, why should we not say so now; the record being before us in the same form as it would come on appeal? It requires no argument to convince the writer that such a situation would be intolerable, and such as the law has sought to avoid by providing a means whereby the appellate court can keep the stream of justice flowing between its proper banks.

By thus proceeding we may presume that one appeal will settle the merits of the case, whatever the judgment of the court below may be. If we deny the writ, we may assume that in a fair proportion of the cases two appeals, one abortive and the other to the merits, will be necessary. This has always been the rule where the court below has ordered the venue of a case to another county. The statute says (section 1027) that 'the writ of prohibition is the counterpart of the writ of mandate.' Now, if it be so, why have we not the counterpart of this case in the case of State ex rel. Wyman v. Superior Court, 40 Wash. 443, 82 P. 875, 2 L. R. A. (N. S.) 568, 111 Am. St. Rep. 915, 5 Ann. Cas. 775, where the court said:

'If * * * the superior court of Spokane county had exclusive jurisdiction to hear and determine the garnishment proceedings, without power or discretion to order a change of venue, mandamus is the proper remedy.'

In State ex rel. Howell v. Superior Court, 82 Wash 356, 144 P. 291,...