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L. Co. v. Superior Ct. 20 Wash. 502, damus where there was a remedy 55 Pac. 933. The authorities are by appeal. But, as stated in that unanimous to the effect that neither case, all those decisions were overa writ of mandate nor other extraor- ruled where the question of jurisdinary writ can be used to per- diction of the court below was the form the office of an appeal to re- sole test of jurisdiction in this court, view the judicial action of an and the quotation from the Langley inferior tribunal."

Case, supra, shows that the rule has There is no showing in this rec- been adhered to where there was a ord, and none was attempted upon remedy by appeal. The general rule the oral argument, that any emer- in other states may be that errors gency exists, or that there is any of this kind may be reviewed by a danger of any rights or any prop- writ of mandamus, but that is not erty being lost by whatever delay the rule in this court, and we have may occur upon an appeal, should frequently so held, because the statone be taken; but the relator comes ute of this state controls, and prohere insisting that the writ should vides that such writs may be issued issue nevertheless. If the writ may only where there is not a plain, issue in this case, then it may issue speedy, and adequate remedy by apin all cases where a general demur- peal. In the cases referred to in the rer, which goes to the jurisdiction majority opinion, even in State ex either of the person or of the sub- rel. Martin v. Superior Ct. 97 Wash. ject-matter, is sustained to a com- 358, L.R.A.1917F, 905, 166 Pac. plaint. The issuance of the writ in 630, which was a change of venue this case again opens the door to case, we concluded that there was appeals by writs of mandamus, and no plain, speedy, and adequate not in the ordinary way. This is remedy by appeal, and for that reawhat we sought to avoid when we son writs were issued. I would announced the rule in State ex rel. readily concede in this case that, if Miller v. Superior Ct. 40 Wash. there was no adequate remedy, by 555, 2 L.R.A.(N.S.) 395, 111 Am. appeal, then it would be a proper St. Rep. 925, 82 Pac. 877. I agree case for the issuance of the writ. I that jurisdiction is the power_to agree, of course, that the extraorhear and determine causes. The dinary writ of prohibition or mantrial court exercised that power. It damus may be a speedy and easy decided the case upon a question of way of reviewing errors which oclaw. If that decision was erron- cur in the trial court, but until the eous, it may be reviewed by ordi- majority opinion becomes the law nary appeal. If the decision was and reads out of the statute $ 1015, right, it disposes of the case. I as it undoubtedly does, and overagree that the office of the writ of

rules State ex rel. Miller v. Supemandamus is to compel inferior rior Ct. supra, and numerous other tribunals to exercise their jurisdic- cases holding to the same effect, I tion. The lower tribunal has acted must withhold my concurrence in in this case, and exercised its juris- that practice. diction. I agree that prior to State ex rel. Miller v. Superior Ct. supra,

Parker, J., concurs with Mount, J. this court had issued writs of man- Petition for rehearing denied.

ANNOTATION. Mandamus to compel court to assume or exercise jurisdiction where it has

erroneously dismissed the cause or refused to proceed on the ground of

supposed lack of jurisdiction. 1. General rule, 583.

IV. As affected by question whether deII. Judicial statements of rule, 586.

cision rests on a ruling of law or III. Doctrine limiting rule to ab initio re

a determination of fact, 599. fusal of jurisdiction, 592.

V. Existence of other remedies, 600.

post, 632.

On mandamus where the cause has tion is in every case a judicial act been erroneously dismissed for insuf- within the meaning of the second rule, ficiency or lack of service, see note to have been found. In only a few deciSpeckert v. Ray, post, 610.

sions cited herein is this question disOn inadequacy of remedy by appeal cussed, and in those there is considor writ of error as affecting right to erable difference of opinion as to the mandamus to inferior court, see note guiding rules for determining which to Ketchum Coal Co. v. District Ct. cases are, and which are not, within

the second rule. So, it may be said On mandamus to compel court to that all courts recognize the soundreinstate or proceed with a hearing ness of the general rule that manin an appeal that it has erroneously damus will lie to compel an inferior dismissed, see note to Floyd v. Sixth court to take jurisdiction, where it Judicial Dist. Ct. post, 655.

has refused from the beginning to do 1. General rule.

so on the ground that it lacks juris

diction; but a few courts refuse to The elementary rule that, subject to

issue the writ if the inferior court has certain limitations or conditions, man

judicially determined that it has no damus will lie for the purpose of set

jurisdiction, and the courts are not ting inferior courts in motion when it

agreed upon the extent to which the is their duty to act and action has

rule may be limited by other elements, been either refused or unreasonably

such as the existence of a right to an delayed, is here assumed. Another

appeal or writ of error. rule, which may be treated as one of

In the reported case (STATE EX REL. the limitations or conditions to which

MARTIN V. SUPERIOR Ct, ante, 572) the the general rule is subject, must also

court makes a distinction between be here assumed, i. e., mandamus can

cases in which the inferior tribunal not be invoked where the effect of its

decided that it had no inherent jurisissue would be to substitute the com

diction (jurisdiction over the subjectmand of the superior, for the judicial discretion of the inferior, tribunal.

matter), and those in which it held

that it lacked jurisdiction to proceed Such is ordinarily the result if the

in the particular case, because of deinferior court has already acted ju

fective service, etc. While this posidicially, and cannot comply with the mandate without a modification or re

tion may be supported by a few

authorities, it would appear to be opversal of its judgment, decree, or order. A question raised by the subject posed in a practical way to the weight

of authority, at least, so far as the of this annotation arises at this

latter part of the proposition goes. point. Is a dismissal of a cause, or a

See note to Speckert v. Ray, above rerefusal to proceed therein, on the

ferred to. ground that the court lacks jurisdic

Other courts have adopted the thetion, such a judicial act? If it is,

ory that, if the question of jurisdicsuch a case would seem to fall with

tion before the inferior court was one in the second rule, and mandamus

of fact, mandamus will not lie; but if would not lie to compel the court to

it was purely a question of law, then act if it had erroneously dismissed the

there is no discretion exercised, and cause, or had refused to proceed

mandamus will be issued if the decitherein for supposed lack of jurisdic

sion was erroneous. See cases cited tion. On the other hand, the conclusion that mandamus will always lie

to this point, infra.
There is a larger group

of in such a case does not necessarily

but

cases, follow the holding that the case is not

yet a comparatively small number, in within the second rule, there being

which the courts apparently adopt the other conditions or limitations to the theory that the time and manner in first rule.

which the question of jurisdiction No decisions, holding that a dis- came before the inferior court are demissal or a refusal to proceed on the cisive of the question. If the court ground that the court lacks jurisdic- refuses from the beginning to take

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jurisdiction of a case, upon the mis- California.-Beguhl v. Swan (1870) taken theory that it has no jurisdic- 39 Cal. 411; Levy v. Superior Ct. tion, 'mandamus will lie to compel it (1885) 66 Cal. 292, 5 Pac. 353 (rule to proceed, but if it takes jurisdiction, not applied); Temple v. Superior Ct. and upon a plea to the jurisdiction, or (1886) 70 Cal. 211, 11 Pac. 699; Ald. in some other way, judicially deter- rich v. Superior Ct. (1901) 135 Cal. mines, although erroneously, that it 12, 66 Pac. 846 (rule not applied); has no jurisdiction, mandamus will Cahill v. Superior Ct. (1904) 145 Cal. not lie. See cases cited, infra. It 42, 78 Pac. 467; De La Beckwith v. should be noted that the United States Superior Ct. (1905) 146 Cal. 496, 89 cases cited to this proposition, infra, Pac. 717; San Francisco Gas & E. Co seem to be based largely upon the fact v. Superior Ct. (1908) 155 Cal. 30, 99 that under the Federal practice an Pac. 359, 17 Ann. Cas. 933; Golden appeal or writ of error is available to Gate Tile Co. v. Superior Ct. (1911) the complainant in the latter class of 159 Cal. 474, 114 Pac. 978; Scott v cases. See cases cited, V. infra.

Shields (1908) 8 Cal. App. 12, 96 Pac. Although the application of the 385; Hill v. Superior Ct. (1911) 15 rule that mandamus lies to compel an Cal. App. 307, 114 Pac. 805; Blake v inferior court to exercise jurisdiction, Superior Ct. (1911) 17 Cal. App. 51 when it has erroneously decided that 118 Pac. 448; Widrin v. Superior Ct it does not have jurisdiction, is by (1911) 17 Cal. App. 93, 118 Pac. 550 many courts subjected to various lim- Moch v. Superior Ct. (1919) Cal itations and conditions, practically all App. -, 179 Pac. 440. courts uphold the general rule itself. Dakota.- Territory ex rel. Travel.

United States.-Ex parte Bradstreet ers' Ins. Co. v. Judge of District Ct. (1833) 7 Pet. 647, 8 L. ed. 815; Knick- (1888) 5 Dak. 275, 38 N. W. 429. erbocker Ins. Co. v. Comstock (1873) Florida. Ex parte Henderson 16 Wall. 258, 21 L. ed. 493; Chicago & (1855) 6 Fla. 279; Anderson v. Brown A. R. Co. v. Wiswall (1875) 23 Wall. (1855) 6 Fla. 299; State ex rel. Col507, 23 L. ed. 103; Ex parte Schollen- cord v. Young (1893) 31 Fla. 594, 19 berger (1878) 96 U. S. 369, 24 L. ed. L.R.A. 636, 34 Am. St. Rep. 41, 12 So. 853 (see 5 W. N. C. 405, Fed. Cas. No. 673 (arguendo); State ex rel. Turner 12,475a, in connection); Ex parte v. Hocker (1895) 36 Fla. 358, 18 So Brown (1886) 116 U. S. 401, 29 L. ed. 767; State ex rel. Birmingham Trust

76, 6 Sup. Ct. Rep. 587 (rule not ap- & Sav, Co. v. Reeves (1902) 44 Fla. plied); Ex parte Parker (1887) 120 179, 32 So. 814; State ex rel. Duke v. U. S. 737, 30 L. ed. 818, 7 Sup. Ct. Wills (1905) 49 Fla. 380, 38 So. 289; Rep. 767; Re Parker (1889) 131 U. S. Crump v. Branning (1917) 221, 33 L. ed. 123, 9 Sup. Ct. Rep. 708; 77 So. 228; State ex rel. Hopps v. Re Pennsylvania Co. (1890) 137 U. S. Horne (1918) Fla. - 77 So. 672. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. Idaho.—Hill v. Morgan (1904) 9 141 (rule not applied; see also Rose's Idaho, 718, 76 Pac. 323; Fox v. Flynn Notes to these cases); Re Hohorst (1915) 27 Idaho, 580, 150 Pac. 44. (1893) 150 U. S. 653, 37 L. ed. 1211, 14 Kansas.-State ex rel. Morris v. Sup. Ct. Rep. 221; Re Grossmayer Webb (1886) 34 Kan. 710, 9 Pac. 770; (1900) 177 U. S. 48, 44 L. ed. 665, 20 Emporia v. Randolph (1895) 56 Kan. Sup. Ct. Rep. 535 (rule not applied); 117, 42 Pac. 376. Re Connaway (1900) 178 U. S. 421, 44 Kentucky.-Hoke v. Com. (1881) 79 L. ed. 1134, 20 Sup. Ct. Rep. 951; Re Ky. 567; Com. v. Newell (1902) 114 Simmons (1918) 247 U. S. 231, 62 L. Ky. 419, 71 S. W. 4. ed. 1094, 38 Sup. Ct. Rep. 497; Finn v. Louisiana.-State ex rel. Cobb v. Hoyt (1892) 52 Fed. 83; United States Judges of Circuit Ct. of Appeals ex rel. Mudsill Min. Co. v. Swan (1880) 32 La. Ann. 774; State ex rel. (1895) 13 C. C. A. 77, 31 U. S. App. McGee v. Judges of Ct. of Appeals 112, 65 Fed. 647 (rule not applied). (1881) 33 La. Ann. 180; State ex rel.

Arkansas. Gilbert v. Shaver Harper v. Judges of Ct. of Appeals (1909) 91 Ark. 231, 120 S. W. 833. (1881) 33 La. Ann. 358; State ex rel.

Fla. -,

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New Orleans Merchants' Mut. Ins. Co. v. Mayo (1881) 33 La. Ann. 1070; State ex rel. Winter v. Judges of Ct. of Appeals (1881) 33 La. Ann. 1096; State ex rel. Davidson v. Judges of Ct. of Appeals (1885) 37 La. Ann. 109; State ex rel. Lacaze v. Judges of Ct. of Appeals (1890) 42 La. Ann. 1087, 8 So. 267; State ex rel. Beauvais v. Judges of Ct. of Appeals (1896) 48 La. Ann. 672, 19 So. 617; State ex rel. Grunewald v. Judges of Ct. of Appeals (1901) 105 La. 217, 29 So. 816; Reynolds v. Carroll (1905) 114 La. 610, 38 So. 470; McClenny v. Webb (1905) 114 La. 779, 38 So. 558.

Michigan.-People ex rel. Hosie v. Judges of Wayne Circuit Ct. (1871) 22 Mich. 493; People ex rel. Comstock v. Judge of Wayne Circuit Ct. (1874) 30 Mich. 98; People ex rel. Burns v. Judge of Superior Ct. (1879) 40 Mich. 630; People ex rel. Robinson v. Swift (1886) 59 Mich. 529, 26 N. W. 694; Coot v. Willett (1892) 93 Mich. 304, 53 N. W. 395; Brown v. Pontiac Min. Co. (1895) 105 Mich. 653, 63 N. W. 1000; Taylor v. Montcalm Circuit Judge (1900) 122 Mich. 692, 81 N. W. 865.

Minnesota.–State ex rel. Prall v. District Ct. (1914) 126 Minn. 501, 148 N. W. 463, Ann. Cas. 1915D, 198 (lower court thought its jurisdiction discretional).

Missouri. Costello v. St. Louis Circuit Ct. (1859) 28 Mo. 259 (rule recognized but not applied); State ex rel. Harris v. Laughlin (1882) 75 Mo. 358; State ex rel. Monnet Mill. Co. v. Neville (1900) 157 Mo. 386, 51 L.R.A. 95, 57 S. W. 1012; State ex rel. Title Guaranty & T. Co. v. Broaddus (1908) 210 Mo. 1, 108 S. W. 544; State ex rel. Weichart v. County Ct. (1911) 236 Mo. 140, 139 S. W. 125; State ex rel. Modern Woodmen v. Broaddus (1912) 239 Mo. 359, 143 S. W. 455; State ex rel. McDermott Realty Co. v. McElhinney (1912) 246 Mo. 44, 151 S. W. 457; State ex rel. Snow Steam Pump Works v. Homer (1913) 249 Mo. 58, 155 S. W. 405; State ex rel. Fleming v. Shackelford (1914) 263 Mo. 52, 172 S. W. 347; State ex rel. Knisely v. Holtcamp (1915) 266 Mo. 347, 181 S. W. 1007: State ex rel. Newell v. Cave

(1917) 272 Mo. 653, 199 S. W. 1014, writ of error dismissed in (1918) 246 U. S. 650, 62 L. ed. 921, 38 Sup. Ct. Rep. 334.

Montana.--State ex rel. Mathews v. Eddy (1891) 10 Mont. 311, 25 Pac. 1032; State ex rel. Kellogg v. District Ct. (1893) 13 Mont. 370, 34 Pac. 298; State ex rel. Northern P. R. Co. v. Loud (1900) 24 Mont. 428, 62 Pac. 497. Nevada. - Cavanaugh v.

Cavanaugh v. Wright (1866) 2 Nev. 166; Floral Springs Water Co. v. Rives (1880) 14 Nev. 431; Floyd v. Sixth Judicial Dist. Ct. post, 646; State ex rel. Howev. Moran (1914) 37 Nev. 404, 142 Pac. 534.

New York.-Re Runk (1911) 200 N. Y. 447, 94 N. E. 363; People ex rel. Acritelli v. Foster (1903) 40 Misc. 19, 81 N. Y. Supp. 212, affirmed in (1903) 87 App. Div. 193, 84 N. Y. Supp. 97; Kelsey v. Church (1906) 112 App. Div. 408, 98 N. Y. Supp. 535.

North Dakota.-State ex rel. Heffron v. District Ct. (1913) 26 N. D. 32, 143 N. W. 143.

Ohio.—Re Turner (1832) 5 Ohio, 542; State ex rel. Snell v. McCarty (State ex rel. Funck v. McCarty) (1895) 52 Ohio St. 363, 27 L.R.A. 534, 39 N. E. 1041; State ex rel. Smith v. Smith (1903) 69 Ohio St. 196, 68 N. E. 1044.

Oklahoma. Higgins v. Brown (1907) 20 Okla. 355, 94 Pac. 703. Texas.-Schultze v. McLeary (1889)

v 73 Tex. 92, 11 S. W. 924; Cox v. Hightower (1898) 19 Tex. Civ. App. 536, 47 S. W. 1048.

Utah.-State V. Hart (1899) 19 Utah, 438, 57 Pac. 415; State ex rel. Neilson V. Third Judicial Dist. Ct. (1909) 36 Utah, 223, 102 Pac. 868; State ex rel. Barnes v. Second Dist. Ct. (1909) 36 Utah, 396, 104 Pac. 282 (rule not applied); H. L. Griffin Co. v. Howell (1911) 38 Utah, 357, 113 Pac. 326; Ketchum Coal Co. v. District Ct. post, 619; Christensen v. Christensen, post, 641.

Vermont. Woodstock v. Gallop (1856) 28 Vt. 587.

Virginia.-Cowan v. Fulton (1873) 23 Gratt. 579; Kent v. Dickinson (1875) 25 Gratt. 817; Richardson v. Farrar (1892) 88 Va. 760, 15 S. E. 117; Valley Turnp. Co. v. Moore

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(1902) 100 Va. 702, 42 S. E. 675 (ar- 24 So. 389; State ex rel. Grunewald guendo).

v. Judges of Ct. of Appeals (1901) Washington.-State ex rel. Shannon 105 La. 217, 29 So. 816; State ex rel. v. Hunter (1891) 3 Wash. 92, 27 Pac. McGee v. Judges of Ct. of Appeals 1076; State ex rel. Hill v. Lichtenberg (1881) 33 La. Ann. 180; State ex rel. (1892) 4 Wash. 553, 30 Pac. 659; State Suberville v. Judges of Ct. of Appeals ex rel. Smith V. Parker (1895) 12 (1893) 45 La. Ann. 1319, 14 So. 118; Wash. 685, 42 Pac. 113; State ex rel. State ex rel. Liggins v. Judges of First Smith v. McClinton (1897) 17 Wash. Circuit Ct. of Appeals (1895) 47 La. 45, 48 Pac. 740; State ex rel. Town- Ann. 1516, 18 So. 510; State ex rel. send Gas & E. L. Co. v. Superior Ct. Mutual Nat. Bank v. Judges of Ct. of (1899) 20 Wash. 502, 55 Pac. 933 (rule Appeals (1897) 49 La. Ann. 1084, 22 not applied); State ex rel. Strohl v. So. 193; First Nat. Bank v. Rowland Superior Ct. (1899) 20 Wash. 545, 45 (1907) 45 Tex. Civ. App. 3, 99 S. W. L.R.A. 177, 56 Pac. 35; State ex rel. 1043; State ex rel. Barnes v. Second McDonald v. Steiner (1906) 44 Wash, Dist. Ct. (1909) 36 Utah, 396, 104 Pac. 150, 87 Pac. 66 (dictum).

282; United States ex rel. Mudrill Min. West Virginia.—Wheeling Bridge Co. v. Swan (1895) 13 C. C. A. 77, 31 & Terminal R. Co. v. Paull (1894) 39 U. S. App. 112, 65 Fed. 647; Ex parte W: Va. 142, 19 S. E. 551.

Des Moines & M. R. Co. (1881) 103 England.-Reg. V. Leicester Free- U. S. 794, 26 L. ed. 461 (see also men (1850) 15 Q. B. 671, 117 Eng. Rose's Notes to this case); Re GrossReprint, 613, 14 Jur. 914, 19 L. J. Q. mayer (1900) 177 U. S. 48, 44 L. ed. B. N. S. 413; Re Brighton Intercepting 665, 20 Sup. Ct. Rep. 535. Sewers Bd. (1882) L. R. 9 Q. B. Div. Where a court refuses to determine 723; Rex v. Justices of Kent (1811) a cause, and erroneously orders it 14 East, 395, 104 Eng. Reprint, 653; stricken from the calendar for supReg. v. Bingham (1843) 4 Q. B. 877, posed lack of jurisdiction, without 114 Eng. Reprint, 1127, 3 Eng. Ry. & having assumed jurisdiction, mandaC. Cas. 390; Reg. v. Phillimore (1884) mus will lie to compel it to determine 51 L. T. 205, L. R. 14 Q. B. Div. 474, the cause on the merits. Beguhl v. note, 32 Week. Rep. 593, 48 J. P. 774; Swan (1870) 39 Cal. 411. Reg. v. Richards (1851) 20 L. J. Q.

II. Judicial statements of rule. B. N. S. 351, 2 Lowndes M. & P. 263;

In San Francisco Gas & E. Co. v. Reg. v. Judge of Southampton County Ct. (1891) 65 L. T. N. S. 320; Reg. v.

Superior Ct. (1908) 155 Cal. 30, 99

Pac. 359, 17 Ann. Cas. 933, supra, Percy (1873) L. R. 9 Q. B. 64, 43 L. J. Mag. Cas. N. S. 45, 22 Week. Rep.

where mandamus was issued to compel

an inferior court to issue a commis72. Canada.-Re McKenzie (1871) 31 U.

sion to take the deposition of a wit

ness for possible use by complainant C. Q. B. 1; Re Allan (1885) 10 Ont.

as defendant in a civil suit which was Rep. 110; Re Norris (1897) 28 Ont.

pending in the supreme court on apRep. 636; Re Sawyer Massey Co. (1897) 28 Ont. Rep. 662; Rex v. Mee

peal from a refusal to grant a new han (1902) 3 Ont. L. Rep. 567; Green

trial, the court said: "To the grantv. Crawford (1910) 21 Ont. L. Rep.

ing of this relief it is objected, in the 36.

first place, that the order of the su

perior court denying petitioner's moThe subject of this annotation ex

tion for a commission was an order cludes cases in which the writ was

made after final judgment in the acrefused on the ground that, in the

tion of Linforth v. Gas Co., and as opinion of the superior court, the in

such is reviewable on appeal (Code ferior court was correct in holding Civ. Proc. & 963); and, since appeal that it had no jurisdiction. But

is a plain, speedy, and adequate remthere are a few such cases sometimes

edy, that mandamus will not lie (Code cited erroneously as opposed to the Civ. Proc. $ 1086). This position asgeneral rule as above stated. Ex sumes that the superior court had juparte Goldthwaite (1898) 120 Ala. 481, risdiction to make the order sought

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