State ex rel. Washington Dredging & Improvement Co. v. Moore

The opinion of the court was delivered by

Dunbar, J.

On the 3d day of May, 1898, the respondent filed a motion in the superior court of TCing county dismissing the appeal of appellant in an action brought into said superior court on appeal from the hoard of state land commissioners, state of Washington, entitled “The Washington Dredging and Improvement Company, appellant, v. George Kinnear et al., respondents.” Afterwards, to-wit, on the 14th day of May, 1898, said motion was argued and submitted to Judge Moore, who took the same under advisement and held the said matter until the 20th day of August, 1898, when said motion was granted; and afterwards, to-wit, on the 5th day of October, 1898, said order and decree of dismissal was filed in the office of the clerk of the superior court of King county, Washington. More than ninety days having elapsed from the submission of the question to its decision by the court, it is contended that the court lost jurisdiction to determine the same.

A motion was subsequently made by the appellant to redocket the said cause and place the same upon the trial calendar, which order was denied by the court; and the relator therefore prays that a writ of mandamus issue from this court, directing and commanding the court below to redocket the above entitled cause, and to replace the same upon the trial calendar of said court. Relator also affirms that he has no plain, speedy, and adequate remedy at law.

The records of this court show that the appeal was taken, or attempted to be taken, from the judgment of the court dismissing the appeal above referred to, which appeal was, on the motion of the respondents, dismissed by this court for the reason that the law in relation to taking appeals from the superior court to the appellate court had not been complied with.

It is contended by the appellant that, the court having acted without jurisdiction in rendering the judgment com- - plained of, an appeal would not lie, and that therefore his only remedy would be by mandamus. That the appeal would lie, even conceding that the court acted without jurisdiction, see Sheppard v. Guisler, 10 Wash. 41 (38 Pac. 757), and Stewart v. Lohr, 1 Wash. 341 (25 Pac. 457, 22 Am. St. Rep. 150).

The order of the court, then, being appealable, under the decisions of this court in State ex rel. Light Co. v. Superior Court, 20 Wash. 502 (55 Pac. 933), and State ex rel. Vincent v. Superior Court, filed November 15,1899, ante, p. 571, the action for mandamus will not lie, whether the court was acting with or without jurisdiction. Of course, the fact that the appeal is not available to the relator now cannot he taken into consideration, as it was through his fault that the appeal to which he was originally entitled failed. This renders unnecessary a discussion of the merits of the controversy.

The writ will be denied.

Gordon, C. J., and Fullerton and Reavis, JJ., concur.