(dissenting)—I cannot agree that this is a case for the issuance of the writ of mandate. Our statute provides, at Rem. Code, § 1011, that the writ,
“may be issued by any court, except a justice’s or a police court, to any inferior tribunal, ... to com*96pel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station, . ”
and, at § 1015:
“The writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. ’ ’
This court, in State ex rel. Miller v. Superior Court, 40 Wash. 555, 82 Pac. 875, 111 Am. St. 925, 2 L. E. A. (N. S.) 395, laid down the rule, in accordance with the statute, that these extraordinary writs would not issue in cases where there was a plain, speedy and adequate remedy by appeal. We there said:
“We again announce the rule that the adequacy of the remedy by appeal, or in the ordinary course of law, is the test to be applied by this court in all applications for extraordinary writs, and not the mere question of jurisdiction or lack of jurisdiction; and that the adequacy of the remedy by appeal does not depend upon the mere question of delay or expense. There must be something in the nature of the action or proceeding that makes it apparent to this court that it will not be able to protect the rights of the litigants or afford them adequate redress, otherwise than through the exercise of this extraordinary jurisdiction.
“We desire to say in conclusion that the court is declaring no new rule at this time. The rule now adhered to has been the established one in this court since the decision in State ex rel. Townsend Gas etc. Co. v. Superior Court, supra, and ever since the announcement of that decision the court has uniformly treated the cases cited by the relator as overruled. To avoid further misunderstanding, the cases of State ex rel. Cummings v. Superior Court; State ex rel. Campbell v. Superior Court; State ex rel. Allen v. Superior Court; and State ex rel. Stockman v. Superior Court, supra, and all other decisions of this court which make the question of the jurisdiction of the court below the sole- test of jurisdiction in this court, on applications of this kind, are hereby overruled.”
*97• It was stated there, in language as apt as may be readily conceived, that these extraordinary writs will not be issued where there is a plain, speedy or adequate remedy by appeal, and we have steadfastly, since that time, held to that rule, with the possible exception of cases where the court has erred in granting or refusing to grant a change of venue; and in those cases we have held that the remedy by appeal was inadequate, and for that reason alone have issued writs of mandamus and prohibition. It is not .claimed in this case, and cannot reasonably be claimed, that the relator here does not have an adequate remedy by appeal. . As stated in the majority opinion, Mr. Andrews was adjudged to be insane. His wife was appointed guardian of his person and estate. Afterwards, Mr. Andrews was paroled to the care of his daughter, who filed an application in the lower court, alleging that his reason had returned and praying the court to adjudge him again sane and to order the guardian to turn his property over to him as a sane person. In answer to this petition, Mrs. Andrews filed a demurrer, and upon the hearing of that demurrer, the trial court construed a statute (Rem. Code, § 5967) to mean that the superior court did not have jurisdiction to determine whether the insane person was restored to sanity, and for that reason sustained the demurrer and was about to dismiss the petition.
If we may assume that the trial court erred in the construction of the statute referred to, and because of that error dismissed the application, or was about to do so, it is clear that the relator has as plain, speedy and adequate a remedy by appeal as in any other case. Suppose that the simplest form of action is brought upon a promissory note. Suppose the defendant demurs to the complaint upon the ground that the court *98lias no jurisdiction over the subject-matter. Suppose the court, in ruling upon the demurrer, construes a statute and sustains the demurrer to the complaint, and is about to dismiss the action. Can it be said that the plaintiff in such action has no plain, speedy or adequate remedy by appeal and therefore may review the error by mandamus? I think not. And yet the relator’s remedy here is just as plain, just as speedy, and just as adequate as in the supposed case. In State ex rel. Langley v. Superior Court, 74 Wash. 556, 134 Pac. 173, where we referred to a former opinion in that same case, 73 Wash. 110, 131 Pac. 482, holding that certain orders could not be reviewed in advance of final judgment, we said:
“The basis of the majority opinion was that the relators had an adequate remedy by appeal. This, indeed, is the true test in all applications for extraordinary writs. State ex rel. Korsstrom v. Superior Court, 48 Wash. 671, 94 Pac. 472; State ex rel. Carrau v. Superior Court, 30 Wash. 700, 71 Pac. 648; State ex rel. Egbert v. Blumberg, 46 Wash. 270, 89 Pac. 708; State ex rel. Gabe v. Main, 66 Wash. 381, 119 Pac. 844; State ex rel. Townsend Gas & Elec. Light Co. v. Superior Court, 20 Wash. 502, 55 Pac. 933. The authorities are unanimous to the effect that neither a writ of mandate nor other extraordinary writ can be used to perform the office of an appeal to review the judicial action of an inferior tribunal.”
There is no showing in this record, and none was attempted upon the oral argument, that any emergency exists, or that there is any danger of any rights or any property being lost by whatever delay may occur upon an appeal, should one be taken; but the relator comes here insisting that the writ should issue nevertheless. If the writ may issue in this case, then it may issue in all cases where a general demurrer which goes to the jurisdiction, either of the person or' of the sub*99ject-matter, is sustained to a complaint. The issuance of the writ in this case again opens the door to appeals by writs of mandamus, and not in the ordinary way. This is what we sought to avoid when we announced the rule in State ex rel. Miller v. Superior Court, supra. I agree that the jurisdiction is the power to hear and determine causes. The trial court exercised that power. It decided the case upon a question of law. If that decision was erroneous, it may be reviewed by ordinary appeal If the decision was right, it disposes of the case. I agree that the office of the writ of mandamus is to compel inferior tribunals to exercise their jurisdiction. The lower tribunal has acted in this case and exercised its jurisdiction. I agree that, prior to State ex rel. Miller v. Superior Court, supra, this court had issued writs of mandamus where there was a remedy by appeal. But, as stated in that case, all those decisions were overruled where the question of jurisdiction of the court below was the sole test of jurisdiction in this court, and the quotation from the Langley case, supra, shows that the rule has been adhered to where there was a remedy by appeal. The general rule in other states may be that errors of this kind may be reviewed by a writ of mandamus, but that is not the rule in this court and we have frequently so held, because the statute of this state controls, and provides that such writs may be issued only where there is not a plain, speedy and adequate remedy by appeal. In the cases referred to in the majority opinion, even in State ex rel. Martin v. Superior Court, 97 Wash. 358, 166 Pac. 630, L. R. A. 1917F 905, which was a change-of-venue case, we concluded that there was no plain, speedy, and adequate remedy by appeal, and for that reason writs were issued. I would readily concede in this case that, if there was no adequate remedy by appeal, then it would be a proper case for the *100issuance of the writ. I agree, of course, that the extraordinary writ of prohibition or mandamus may be a speedy and easy way of reviewing errors which occur in the trial court, but until the majority opinion becomes the law and reads out of the statute § 1015, as it undoubtedly does, and overrules State ex rel. Miller v. Superior Court, supra, and numerous other cases holding to the same effect, I must withhold my concurrence in that practice.
Parker, J., concurs with Mount, J.