(dissenting) — It was the boast of the common law that it gave a remedy for every wrong. So thoroughly was this principle impressed upon the English people that, where the remedy offered by the common law was inadequate, they found a way to grant full and adequate relief *114through courts of equity. That the relators have been grossly wronged is, I believe, admitted by most every member of this court. They have earned a judgment after a fair and full trial. The court announced a decision in their behalf, yet for no reason apparent in the record, and for no reason made to appear sufficient on the oral argument, it has, upon the demand of the defendants, ordered new parties to be brought in. The parties ordered in were all before the court, or their interests determined as between the parties. Three of the parties were the grantors of the defendants who claim through them their title to the property involved. The defendants assert absolute ownership; therefore they cannot set up a title in the new parties without defeating their own. Defendants do not contend that these three have any interest; and furthermore they were witnesses upon the trial and have filed a complete disclaimer of any interest whatsoever in the subject-matter of this controversy.
As to the remaining parties, their interest, if any, is against the plaintiffs and the defendants can have no interest therein; and as in the case of the other new parties, these were witnesses at the trial, and if they had or claimed any interest, they might have intervened, or defendants might have then asked that they be made parties. The so-called new parties, having been before the court and with full knowledge of the sub j ect-matter of the controversy, would be estopped to maintain an independent action, and therefore could not set up a right in this proceeding. Murne v. Schwabacher Bros. & Co., 2 Wash. Ter. 191, 3 Pac. 270; Shoemake v. Finlayson, 22 Wash. 12, 60 Pac. 50; American Bonding Co. v. Loeb, 47 Wash. 447, 92 Pac. 282.
The court also ordered one Galbraith brought in. Galbraith is maintaining an independent action against the same defendants, in which these relators can have no possible interest ; and besides Galbraith appeared at the trial and in open court offered to be a party and to be bound by the decree, but upon the objection of the defendants the court refused to *115allow him to come in, and just why defendants should be permitted to use the name of Galbraith to get a new trial is beyond me. If this recital is not sufficient, it appears further that the court found that Galbraith was entitled to one-fifth of the fund in litigation; therefore, he can be in no way prejudiced by the judgment in this case.
This disposes of the new parties; five have disclaimed or are estopped; the sixth has an independent suit against defendants in which relators can have no possible interest. The court has found defendants guilty of fraud and deceit. To avoid the entry of a formal judgment, defendants made an application to have new parties brought in; and as before stated, the court, for no apparent reason, and certainly no reason in law, granted the motion and ordered an amended complaint filed. I shall not discuss the wrong. That is apparent. Let us come to the remedy.
Relators are denied a writ of certiorari because the error may be reviewed on appeal. Of course it never will be so reviewed; such errors never are, for they do not go to the merits of the case, and we have a convenient way of passing them over. Aside from this, and granting the argument of the majority is well founded, it has ignored the prayer of the relators entirely. They say in their brief:
“In considering the application of the relators herein for writ of review, it may be, in view of all the circumstances shown by said application, that this court should reach the conclusion that a writ of mandamus would be the proper remedy. If this conclusion is reached . . . this court has ample power to grant the writ of mandamus, even though the relators’ application- is for a writ of review.”
There can be no question that relators are entitled to a judgment, either in their favor as the court announced in his memorandum decision, or against them, so that they can appeal in an orderly way. And upon the present showing, if the application had been for a mandamus, I doubt not that the writ would have issued. They have asked for alternative *116relief, and the real question for us to decide, although it is ignored by the majority, is whether, a writ of certiorari being denied, the writ of mandamus shall issue.
The special proceedings, as provided in the act of 1896, are civil actions under the code, and are governed by the same rules of pleading and practice. State ex rel. Brown v. Mc-Quade, 36 Wash. 579, 79 Pac. 207; State ex rel. Billings v. Lamprey, 67 Wash. 84, 106 Pac. 501, and the many cases cited therein. This court has often held that an aggrieved party shall not be turned' out of court because he has misconceived his cause of action; that his complaint is not demurrable if it states a cause of action upon any theory. Smith v. Wingard, 3 Wash. Ter. 291, 13 Pac. 717; Casey v. Oakes, 17 Wash. 409, 50 Pac. 53; Dunlap v. Rauch, 24 Wash. 620, 64 Pac. 807; Damon v. Leque, 14 Wash. 253, 44 Pac. 261; Watson v. Glover, 21 Wash. 677, 59 Pac. 516; Dormitzer v. German Sav. & Loan Soc., 23 Wash. 132, 62 Pac. 862; Yarwood v. Johnson, 29 Wash. 643, 70 Pac. 123; Brown v. Calloway, 34 Wash. 175, 75 Pac. 630; McKay v. Calderwood, 37 Wash. 194, 79 Pac. 629; Lawrence v. Halverson, 41 Wash. 534, 83 Pac. 889; State ex rel. Maltbie v. Will, 54 Wash. 453, 103 Pac. 479, 104 Pac. 797; Pomeroy, Code Remedies, § 71.
In Widrin v. Superior Court etc., 17 Cal. App. 93, 118 Pac. 550, the petitioner asked for a writ of review to correct an error of the superior court based on its refusal to entertain jurisdiction of an appeal. It was held that, although the writ of review would not issue, nevertheless the court’s action was “tantamount to a refusal to hear and determine the cause, and that the aggrieved party’s remedy is by a writ of mandate to compel the court to do so.” A writ of mandate was issued although not prayed for. See, also,. Golden Gate Tile Co. v. Superior Court etc., 159 Cal. 474, 114 Pac. 978.
It may be argued that relators could not pray for alternative relief, but are bound by their first prayer. To so *117hold would violate the principle of the many cases cited above, the spirit of which has been carried into more than one application for a writ. The cases cited apply the rule of equity to all cases. This rule is set out and discussed in Lawrence v. Halverson, supra, where the court said:
“The complaint is a plain and concise statement of facts constituting a cause of action, with a demand for the relief which the plaintiff claims. But it does not necessarily follow that, if the plaintiff demands relief it is not entitled to under the statement of facts set out in the complaint, it will not be awarded any relief at all. Whatever relief it is entitled to under the facts stated, the court will award.”
In State ex rel. Dyer v. Middle Kittitas Irr. Dist., 56 Wash. 488, 106 Pac. 203, the court held that, although the remedy by mandamus was not pursued in the first instance, it was not waived by the filing of a complaint in a former action that had gone to judgment.
Upon the merits, the case of State ex rel. Gabe v. Main, 66 Wash. 381, 119 Pac. 844, is in point. There an application was made for a writ to compel the entry of judgment upon a verdict. In this case the court announced in a formal opinion that he would decide in favor of the relators. We said in the Gabe case:
“Can it be said that the remedy by appeal is adequate where the absolute right to instant relief is shown- by the admitted facts, and where, under those facts, there was no room for discretion on the part of the court ? . . . The relatrix was acquitted by the jury, and the real matter of controversy, and every part of it, was ended in her favor. . . . Such a remedy would be neither adequate nor in keeping with the spirit of the law. The relatrix having stood her trial, and having been found not guilty, was entitled without any delay to the' full fruits of the verdict.”
It is my judgment that the petition of the relators states a cause of action and that, if not entitled to a writ of certiorari, they are entitled to a writ of mandamus to compel the court to enter a formal judgment upon the pleadings, evi*118dence, and conclusions of the court, as prayed for in their brief and oral argument.
Gose, J., concurs with Chadwick, J.