Kitsap County v. Carson ( 1873 )

Opinion by

Lewis, Associate Justice.

The case, as shown by the record, is this :

On the motion and affidavit of the relator, Isaac Carson, an alternative writ of mandamas was issued by the judge of the third judicial District directed to the commissioners of Kitsap county, requiring them, at a day named, to show cause why they should not be compelled to allow and pay a claim held by the relator against the county of Kitsap.

On the return day the commissioners, it seems, made no appearance and no return to the writ, but the county of Kitsap made an appearance and filed a motion to quash the writ.

This motion, which was in the nature of a demurrer, was denied, and no return being made, the court ordered and adjudged that a peremptory writ issue to the commissioners of Kitsap county to compel them to allow and order paid the claim.

The comity of Kitsap sued out a writ of error to reverse-this judgment.

The case comes to this court improperly entitled. The title ■ of the case, as shown by the papers therein, should be this:

“The Territory of Washington, ex rel., Isaac Carson, vs. John P. Condon, S. W. Bullene, county commissioners of Kit-sap county.”

Kitsap county is not made a party to the action in the court below.

The object and purpose of the writ in this case was to comr pel the individual members of the board to perform a duty enjoined on them by law, not as a board, but as individual members thereof, a duty resulting from an office by them held.

"Wherefore Kitsap is in no sense a party to this proceeding and had no authority to sue out this writ of error.

The commissioners, who are properly the defendants, made no complaint as to this judgment and have made no appearance either in the District or Supreme court.

Counsel for Kitsap county have made an elaborate and able argument in support of their views, but as the case is not properly before this court, the defendants not having brought the case here, we must dismiss this writ upon our own motion.