MOUNT, J. This is an application for a writ of mandate to require the judge of the superior court of Clarke county to vacate certain orders, changing the venue in three cases from Clarke county to Cowlitz county, for trial. It appears that the relator is an attorney of record in three cases, which were pending in Clarke county. He filed affidavits therein to the effect that the trial judge of Clarke county was prejudiced against him, and that he could not obtain a fair trial therein. There was no showing that the convenience of witnesses required the trial of the cases in Clarke county. After the affidavits were called to the attention of the judge of the superior court for Clarke county, he made orders changing the venue of the cases, and recited in the orders that the convenience of witnesses and the ends of justice would not be interfered with thereby. The relator now seeks, by this writ of mandate, to vacate the orders changing the venue. Some preliminary questions are presented by the respondent which are not necessary to be noticed, because we are satisfied that the application for the writ should be denied upon its merits. In the case of State ex rel. Moore v. Superior Court, 70 Wash. 362, 126 Pac. 926, a like order was made by the superior court of Jefferson county. When that case came on for hearing in the superior court of King county, the relator there de nied the right of the court to proceed, and insisted that the case should be remanded to Jefferson county until the prejudice of the judge, the character of the action, and the convenience of the witnesses, could be heard and determined in that court. We there held that: "With the change of venue, the superior court of King county acquired full and complete jurisdiction, and if for any cause the case should not be tried in King county, the statutory remedies for changing the venue are still open to the relator." The difference between this application and that is the relator here is seeking to have the orders for change of venue vacated, while in that case the relator sought to have the case remanded from King county to Jefferson county. The statute (Rem. Code, § 209-1) provides that: In State ex rel. O'Phelan v. Superior Court, 88 Wash. 669, 153 Pac. 1078, in construing this statute, we said: "Under the statute, when the affidavit is called to the attention of the judge, he may do one of four things: (a) Transfer the action to another department of the same court; (b) call in a judge from some other court; (c) apply to the Governor of the state to send a judge to try the case; and (d) if the convenience of witnesses, or and the action is of such a character that a the ends of justice will not be interfered with, change of venue may be ordered, he may send the case for trial to the most convenient county." It appears that there is but one department of the superior court for Clarke county. Hence the trial court, when the affidavits were filed, might exercise its discretion upon one or the other of the three alternatives. There was no showing that the convenience of witnesses would be interfered with, and for that reason the court exercised its discretion, and changed the venue to the most convenient county. It is clear that the extraordinary writ of mandamus, or prohibition, will not lie to control the discretion of the trial court. State ex rel. Mill Co. v. Superior Court, 9 Wash. 673, 38 Pac. 155; State v. Straub, 16 Wash. 111, 47 Pac. 227. gg Wash. 344, 153 Pac. 7, we held that this In State ex rel. Howard v. Superior Court, statute did not authorize a change of venue of crime has a right to a trial by a jury of in a criminal case, because the person accused the county in which the crime is alleged to have been committed, but in civil actions it is plain that the statute applies, and where there is no showing to the effect that the convenience of witnesses requires the case to be tried in the county in which it is brought, then the trial court may exercise its discretion and change the venue, in lieu of calling in another judge, or calling upon the Governor for another judge. The relator, therefore, is not entitled to the writ. The application is denied. and FULLERTON, JJ., concur. ELLIS, C. J., and HOLCOMB, PARKER, (95 Wash. 447) STATE ex rel. ROBERTSON et al. v. SUPERIOR COURT FOR SPOKANE COUNTY et al. (No. 13983.) 1917.) March 31, "No judge of a superior court of the state (Supreme Court of Washington. of Washington shall sit to hear or try any action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge shall forthwith transfer the action to another department of the same court, or call in a judge from some other court, or apply to the Governor to send a judge, to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court." 1. LANDLORD AND TENANT 291(1)—ACTIONS UNLAWFUL DETAINER-JURISDICTION. Notice to pay rent, or quit, in an action of unlawful detainer, is a matter to be proved at which depends on service of summons. trial, but unnecessary to give court jurisdiction, [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1217-1222, 1226, 1227.] 2. PROHIBITION 3(3)—ADEQUATE REMEDY BY APPEAL-UNLAWFUL DETAINER. Where trial court has jurisdiction in unlawful detainer, this court will not issue a writ to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes prohibit entry of judgment; there being a com-tainer action. It is not claimed that a propplete remedy by appeal. er service of summons was not made. It is [Ed. Note. For other cases, see Prohibition, apparent that the trial court had jurisdicCent. Dig. §§ 7-19.] Department 2. Application for prohibition by the State, on the relation of Frederick C. Robertson and another, against the Superior Court for Spokane County, C. C. Upton, Judge pro tempore. Writ denied. Robertson & Miller and Cordiner & Cordiner, all of Spokane, for relators. C. L. Shuff and Roy A. Redfield, both of Spokane, for respondents. MOUNT, J. The relators seek a writ to prohibit the superior court of Spokane county from entering a judgment in an unlawful detainer action. tion of the persons of the relators and of the property. The relators strenuously contend that the notice to pay rent, or quit, is necessary to give the court jurisdiction. It may be correct to say that, before an unlawful detainer action can be maintained, the notice to pay rent, or quit, must be served as required by statute, but the jurisdiction of the court to determine questions raised upon the trial of the unlawful detainer action does not depend upon the service of the notice to pay rent, or quit. Jurisdiction depends upon the service of the summons in the action. When the summons is properly served, the court undoubtedly has jurisdiction of the persons. The notice to quit, or pay rent, served in the manner required by law, is a fact to be established upon the trial before the the court may pronounce a judgment of unlawful detainer. The service of such notice is not in itself jurisdictional, but, like any other fact, must be proved. If the court should enter a judgment without the necessary facts being proved, the judgment would be erroneous, but the fact that an erroneous judgment may be entered or is threatened to be entered is not ground for a writ of prohibition. The facts, upon which the writ is sought, may be briefly stated as follows: The relators are tenants of certain real estate in Spokane county belonging to Ida A. Waterman. They have erected a building upon the leased premises. The stipulated rent thereon had not been paid for the months of February, March, April, May, and June of the year 1916. On the 15th day of July of that year the relators had closed their residence in the city of Spokane, and moved to their summer residence in Idaho. Mr. Robertson, one of the relators, was at that time on an extended trip East. On the last-named date This court has held in a long line of cases Ida A. Waterman, the owner of the premises, that before an extraordinary writ of manaddressed a notice to the relators, notifying damus or prohibition will be entertained it them that they were in default for the must appear that the court is not only actmonths named; that the total amount of ing without jurisdiction, but that there is no rent, delinquent and overdue, was the sum adequate remedy by appeal. State ex rel. of $1,750; and the relators were notified to Townsend Gas & Electric Light Co. v. Sueither pay the rent or to surrender posses-perior Court of Jefferson County, 20 Wash. sion of the premises within three days after 502, 55 Pac. 933; State ex rel. Carrau v. Suthe service of the notice. A copy of this no-perior Court of King County, 30 Wash. 700, tice was served on the subtenant and a 71 Pac. 648; State ex rel. Miller v. Superior copy was deposited in the United States Court for Spokane County, 40 Wash. 555, 82 post office at Spokane, addressed to the re- Pac. 877, 2 L. R. A. (N. S.) 395, 111 Am. St. lators at their Spokane address. It was re- Rep. 925; State ex rel. Calhoun v. Superior ceived by a keeper of the residence, and for- Court for King County, 86 Wash. 492, 150 warded to Spirit Lake, Idaho, the place of Pac. 1168; and a large number of cases inthe summer residence of the relators. This tervening between those decisions. notice was not received by the relators until the 22d day of July. On the 20th day of July Ida A. Waterman brought an unlawful detainer action, and the summons in that action was served on the relators on the 21st day of July. Thereupon a writ of restitution was issued, and the leased property was taken possession of by Ida A. Waterman. The relators thereafter appeared in the action, issues were joined, and the case was tried to the court, findings were made in favor of the plaintiff, and the court was about to enter a judgment against the defendants there, whereupon they applied for this writ. [1] It is contended by the relators that no sufficient service of the notice to quit was made upon them, and that therefore the trial court had no jurisdiction to enter a [2] It is apparent from the admitted facts in this case that the trial court not only had jurisdiction of the persons and of the subject-matter, but it is also apparent that there is an adequate remedy by appeal from the judgment which the court may render in the unlawful detainer action. This court has issued extraordinary writs in cases where there was a want of jurisdiction, and in cases where there was no adequate remedy by appeal, but the rule of the court has been that the writ will not issue where the court is acting within its jurisdiction, and there is a complete and adequate remedy by appeal, as there is in this case. It is therefore unnecessary to review the cases cited by the relators; for we are satisfied that the writ should not issue under any rule of this court. application for this writ may all be reviewed upon appeal from the judgment which may be entered in the unlawful detainer action. The writ is therefore denied. Elsholtz was dead, the judgment under which appellant claims was void for want of jurisdiction of the parties. In order to give that jurisdiction which in all cases is essential to the validity of a judgment there must be defendant. Lack of jurisdiction in the one case is as fatal to the jurisdiction of the court as lack of jurisdiction in the other. It matters not that such judgment is attacked ELLIS, C. J., and HOLCOMB and PAR- jurisdiction of the plaintiff as well as of the KER, JJ., concur. (95 Wash. 474) PICARDO et ux. v. PECK. (No. 13800.) (Supreme Court of Washington. April 3, 1917.) 1. JUDGMENT 12 - JURISDICTION - ACTION BY ATTORNEY IN FACT-DEATH OF PLAIN TIFF. Collaterally. "A void judgment may be attacked collaterally as well as directly. It is entitled to no consideration whatever in any court as evidence of right." Kizer v. Caufield, 17 Wash. 417, 49 Pac. 1064. It follows that the judgment must be and A judgment in an action commenced by an attorney in fact of another person who had been judicially determined to have died prior to the commencement of the action was void; juris- is affirmed. diction of the parties being essential, and jurisdiction of plaintiff being as necessary as jurisdiction of defendant. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 15-21, 56, 159.] 2. JUDGMENT LATERAL ATTACK. ELLIS, C. J., and MAIN and WEBSTER, JJ., concur. (95 Wash. 484) 485-CONCLUSIVENESS-COL- PERLUS v. MARKET INV. CO. (No. 13846.) (Supreme Court of Washington. April 3, 1917.) 1. PLEADING 180(2)-COMPLAINT AMEND MENT "DEPARTURE,' A void judgment may be attacked collaterally as well as directly. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 919.] Department 1. Appeal from Superior Cour, King County; Boyd J. Tallman, Judge. Action by Pasquale Picardo and wife against H. E. Peck. Judgment for plaintiffs, and defendant appeals. Affirmed. C. A. Schneider, of Seattle, for appellant. Horace A. Wilson, of Seattle, for respondents. MORRIS, J. [1, 2] Appeal from a judgment in favor of respondents in an action to quiet title. Respondents' title is based upon two deeds from the sheriff of King county in mortgage foreclosure proceedings. Appellant claims under an assignment of a deficiency judgment against one of the defendants in the foreclosure proceedings on which execution had been levied on the property and a certificate of sale issued to appellant. The suit in which the deficiency judgment was entered under which appellant claims was for unlawful detainer and rent commenced by one Siepman under a power of attorney from one Elsholtz. This action was commenced March 10, 1909. Subsequently in probate proceedings upon the estate of Elsholtz it was judicially determined that Elsholtz died November 15, 1907. The evidentiary enect of this probate decree was determined by this court in Wagner v. Alderson, 91 Wash. 157, 157 Pac. 476, where it was held the decree adjudging the fact and time of Elsholtz's death was prima facie proof of the facts determined in a subsequent action brought against the administrator in his representative capacity. This case is determinative of this appeal in so far as the death of Elsholtz was a decisive feature, as there was no showing below which would to any extent overcome this prima facie proof. If Where the complaint was based on breach of alleged written contract of lease, a reply stating that the written contract had been abrogated and an oral one entered into, was a departure. [Ed. Note.-For other definitions, see Words ture.] and Phrases, First and Second Series, Depar 2. PLEADING 180(2)-COMPLAINT AMENU MENT "DEPARTURE.' Where the complaint set up breach of aller ed written lease and the fact of payment of mon ey under the lease seeking return of such mon ey paid, a reply, showing abrogation of the wri ten lease and complete settlement of the claim of the parties, was a departure. 3. PLEADING ~236(1) — AMENDMENT DIS. CRETION OF COURT. Whether an amendment to the complaint is to be allowed is within the discretion of the court, and where the plaintiff sought to amend his reply, after his third amended complaint and after having set up inconsistent causes of action in his reply, it was not an abuse of discretion to refuse the amendment. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 601.] 11-FAIL 4. SET-Off and CounTERCLAIM [Ed. Note.-For other cases, see Set-off and - ordinances is not a taxable item, unless the ordiThe cost of preparing certified copies of city nances were in issue under the pleadings so as to make them admissible in evidence. [Ed. Note.-For other cases, see Costs, Cent. Dig. § 714.] 6. COSTS 178-COSTS TAXABLE-PLATS. [Ed. Note. For other cases, see Costs, Cent. Dig. §§ 708-711.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Department 2. Appeal from Superior month as rent until respondent should comCourt, King County; Kenneth Mackintosh, ply with its agreement to fill the intervenJudge. ing stalls; and that, after appellant had paid rent for such stalls as above referred to and respondent had still failed to fulfill its agreement, it was then agreed that no rent at all should be charged appellant until such fulfillment had taken place. Action by A. Perlus, doing business as the Vashon Poultry Company, against the Market Investment Company, wherein defendant filed a cross-complaint. Judgment for defendant on the complaint and against it on the cross-complaint, and both parties appeal. Affirmed. Geo. B. Cole and John Wesley Dolby, both of Seattle, for appellant. Shepard, Burkheimer & Burkheimer, of Seattle, for respondent. HOLCOMB, J. The third amended complaint in this case alleges, in substance, that appellant was engaged in selling poultry, game, feed, etc., in stalls No. 1520-1522, pursuant to the terms of a written lease entered into on February 13, 1913, between respondent as lessor and appellant as lessee; that while such lease was in full force and effect respondent, in order to induce appellant to cancel the same and enter into a lease for stalls E, F, and G, which were distant some 150 feet northwesterly of where appellant was then located, and as a part of the consideration therefor, orally promised and agreed that, if appellant would surrender stalls 1520-1522, and enter into a new lease for stalls E, F, and G, respondent would fill out the floor space between these two sets of stalls by farmers with their produce for sale, and that there would be a passageway from Pine street in such farmers' sections and stalls in close proximity to stalls E, F, and G; that appellant, relying on these promises, did cancel his former lease and enter into a new lease for stalls E, F, and G, beginning on September 1, 1913, and moved his business thereto; that respondent failed to keep his promise and fill the intervening stalls, to appellant's damage in the sum of $5,000. The second cause of action sets forth a claim for $259 on account of expenditures made by appellant in improving and equipping the stalls covered by the written lease, and the third cause of action alleges the payment of $255 by appellant in accordance with the terms of the lease, for which amount a recovery is claimed. Respondent answered by admitting the execution of the lease and denying the other material allegations of the complaint; and by way of counterclaim, alleged that appellant had been in possession of the leased premises for a period of 33 months; that by the terms of the lease the rent for this period was the sum of $2,805; that appellant had paid thereon only $205, leaving a balance due respondent of $2,600, for which amount with interest respondent asked judgment against appellant. In reply to this counterclaim it was alleged that the lease was abrogated by the contracting parties, and respondent agreed to charge appellant $20 per After one witness had been sworn at the hearing of this cause, respondent moved for judgment on the pleadings for several reasons, among others, that the reply was inconsistent with and constituted a departure from the complaint. Appellant was refused leave to amend the reply, and a judgment on the pleadings was entered in respondent's favor, although it was not allowed to prove its counterclaim, as the trial court was of the opinion that it had been waived. Both parties have appealed. It is asserted by appellant that the lower court erred in striking out several portions of the complaint, but from an examination of such stricken parts we are of the opinion that they were immaterial, and in any event there is no showing that appellant was in any manner materially prejudiced thereby. [1] Appellant strenuously urges that the reply is not a departure from or inconsistent with the complaint, and that it was error to grant a judgment on the pleadings for this reason. An examination of the pleadings discloses that the complaint is based on the breach of an alleged oral agreement entered into between the parties prior to or contemporaneous with, and became a part of the consideration of, the lease of September, 1913. As alleged in the complaint, the validity and existence of the lease is the basis of the action, for assuredly it must fail if no lease in fact exists. The reply alleges the abrogation of this lease, a subsequent agreement which reduced the rent from $85 a month to $20 a month, and a still later agreement by the terms of which appellant was to pay no rent at all until respondent's oral agreement was fulfilled. It is appellant's position that the cross-complaint of respondent was a separate and distinct action by respondent against appellant, and that the reply dealt solely with a defense to the counterclaim; that the designation of their last pleading as a reply was in reality a misnomer, and that it should have been designated as an answer to the cross-complaint. There is no contention that the affirmative relief asked for in respondent's answer was not a proper counterclaim as provided by statute, and so was not a separate cause of action, for it simply asked for the rent as provided for in the terms of the lease pleaded in the complaint. event in one breath appellant swears that there was a lease in full force and effect and an oral agreement, which was part of the consideration of the lease, for the breach of which he attempts to collect damages, and in the next breath swears that the lease did In any not exist, but a settlement was made by [ at issue under the pleadings so that they which he was to occupy the premises for might be introduced in evidence. As no ornothing till respondent's promises were ful- dinances were pleaded, either verbatim or by filled. It is so obvious that these statements their title and date of passage, they could are inconsistent that it needs no further dis- not have been introduced; so this item cussion. The lease either did or did not ex- should be stricken. In regard to the other ist; and if the sworn statements made in item, it is not necessary to discuss what efthe reply are taken as true, the lease was ab- fect the introduction of no evidence in the rogated, and there could be no cause of ac- case including the plats has on the question tion as alleged in the complaint. The reply, of whether it is a proper item of costs, as being absolutely inconsistent with the allega- the weight of authority seems to be that the tions of the complaint, constitutes a depar- cost of preparing plats is not a taxable item ture. of costs in the first instance, and for this reason it also should have been stricken from the cost bill. Weiss v. Meyer, 24 Or. 108, 32 Pac. 1025; Bathgate v. Irvine, 126 Cal. 135, 58 Pac. 442, 77 Am. St. Rep. 158; Ela v. Knox, 46 N. H. 16, 88 Am. Dec. 179. [2] We also deem this reply a departure from the third cause of action which demands the return of the $255 paid on the lease, for, as shown by the reply, a complete settlement was made at the time the subsequent agreements were made, and as nothing was said therein about the sum, it is to be presumed that it was to be retained by respondent as part of the settlement. The judgment is affirmed, with the above costs stricken. Since appellant has recovered a more favorable judgment, neither party shall recover costs on appeal. ELLIS, C. J., and MOUNT and PARKER, JJ., concur. FULLERTON, J., concurs in the result. (95 Wash. 463) [3] Nor are we inclined to hold erroneous the refusal of the trial court to allow appellant to amend its reply, as this was the third amended complaint. The allegations of the reply and complaint are so inconsistent that one or the other cannot be true, and, judging from the colloquy between the court and LA BRECK et al. v. CITY OF HOQUIAM. counsel for appellant, there is considerable ground for belief that the allegations of the reply are the truth. Whether an amendment should be allowed is in the discretion of the trial court, and, when these facts are taken into consideration, we are not prepared to say that this discretion has been abused, as there must be some time when the issues are to be settled. [4] This conclusion also disposes of respondent's cross-appeal, for if appellant is unable to prevail because respondent insists that the averment in the reply-that the written lease was abrogated-constituted a departure, it is apparent that respondent could not press a claim which is based on such written lease and is an attempt to collect the monthly rentals provided for therein. If in considering appellant's claim the lease is held to be abrogated, it must also be held canceled when considering respondent's claim, and respondent undoubtedly so understood when it moved for judgment upon the pleadings. [5, 6] Finally it is urged that the trial court erred in refusing to strike from respondent's cost bill the last two items of $7 and $1.20, respectively, for preparing "plats to be used in trial" and certified copy of city ordinances, since there was no evidence taken at the trial, the person who made the plats is unknown, the plats and ordinances were never filed, and the question of plats (No. 13710.) (Supreme Court of Washington. April 3, 1917.) 1. MUNICIPAL CORPORATIONS ~757(1) STREETS-DUTY TO IMPROVE. within its boundaries, but only those which are A city need not improve all streets platted necessary, and the city is itself the judge of such necessity. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1591.] CORPORATIONS 2. MUNICIPAL STREETS-DUTY TO REPAIR. m761(2) While a city must keep streets improved by it in reasonable repair, it is not responsible for defective sidewalks built by private individuals in outlying districts of the city. for private convenience on unimproved streets [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1503.] 3. MUNICIPAL CORPORATIONS ~761(2) STREETS-INJURY ON PRIVATE PLANKWAY. A city is not liable for a pedestrian's injuries caused by a defective private plankway constructed without permission or notice to the city by an individual on an unimproved street, irrespective of whether the city knew, or should have known, such walkway had been con structed. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1603.] 4. MUNICIPAL CORPORATIONS 761(2)—“PRIVATE WALK"-WHAT CONSTITUTES. A plank walkway, constructed by property owner on an unimproved street for convenience in reaching his premises, is a "private walk," although a mail carrier and some neighbors fre quently used it in going to his house. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1603. For other definitions, see Words and Phrases, and ordinances is not raised by the plead-First and Second Series, Private Way.] ings. Obviously the cost of preparing the certified copy of the city ordinances would Department 2. Appeal from Superior not be a taxable item, unless the same were Court, Grays Hr. County; Ben Sheeks, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |