State ex rel. Abernethy v. Moss

The opinion of the court was delivered by

Scott, J.

The respondents move to strike the statement of facts herein, on the ground that a copy of the same was served upon them before the original was filed with the clerk of the court, and in support of said motion one of the attorneys for the respondents makes an affidavit in this court to the effect that on the 24th,day of May, 1895, at his office in the Hyde block in the city of Spokane, there was presented to him by the appellant the original statement of facts, with the request that he admit service of the same, and that he did so by indorsing such admission upon such original statement, and that at said time there was no filing mark on said statement showing that the same had been filed with the clerk of the court, and that he was informed and believed that the same had not been filed, but it does not appear from whom this information was obtained.'

It seems to us that this showing is insufficient. In the first place, if we were to presume that the statement had not been filed with the clerk of the court when served, because there was no filing mark thereon at the time, it does not appear but that the same might have been filed practically at the same time service was admitted by the respondents. For aught we know, the clerk’s office might have been in a room adjoining the one where the service was made, and if the respondents had admitted service of the statement one moment, and the next moment the same had been presented to the clerk of the court for filing, so that the filing was contemporaneous with the serving, that certainly would have been sufficient.

But aside from this, we do not think that a question of this kind should be presented to us for determination upon affidavits filed in this court. If the respondents desired to attack the statement upon the ground specified, they should have raised the objection in the lower court and made proof of the facts upon which the attack was based, and the lower cou?t might have taken proofs, or such steps as it should have deemed necessary, to determine the fact as to whether the statement was filed at or prior to the time of service. Possibly an appeal to this cotfrt would lie from the decision of that court upon the question of fact, but we are not called upon to determine this question at this time. Motion denied.

The subject matter of this litigation has been before this court on a former occasion, in Abernethy v. Medical Lake, 9 Wash. 112 (37 Pac. 306), where the relator had brought an action against the town to recover the amount in controversy, and it was held that he' had mistaken his remedy, and should resort to mandamus. After the determination of said suit, this proceeding in mandamus was brought and, judgment being rendered against the relator, the present appeal was taken.

It is contended by the respondents that the judgment should be affirmed on the ground that the alternative writ failed to show upon its facé that the relator was entitled to any relief, and it is contended in the respondent’s brief that this question was raised by demurrer. It appears that the grounds upon which the relator’s rights are founded were set forth in a petition to the superior court for the alternative writ, but that the same were not fully incorporated in said writ when issued. It further appears, however, that the court directed that a copy of the petition should be served on respondents, and that this was done at the time the writ was served. • Respondents contend, however, that the matters set forth in this petition cannot be considered as embraced in the writ. Even if we were to concede this contention to be well, taken, we think the point was waived, for it does not- appear that there was any question raised as to the sufficiency of the writ. No demurrer is shown by the record, but, on the contrary, it appears that the respondents answered, taking issue upon the matters alleged in the petition, and the objection is not tenable.

The respondents also seek to attack the validity of the relator’s claim against the town, but we think that they are precluded by the former case from so doing, as all such matters were, or should have been; presented at that time. The action of this court- in disposing of the former case was based upon the ground' that the relator held valid and binding claims against the town, and for-that reason it was held that his remedy was in mandamus. The legality of those claims was there settled and established, and whether rightfully or wrongfully cannot now be questioned. Cloud v. Lawrence, 12 Wash. 163 (40 Pac. 741).

: The action of the lower court in finding against the relator is reversed, and the cause is remanded with directions to issue the peremptory writ.

Hoyt, C. J., and Gordon, J., concur.

Anders, J., concurs in the result.