129 F. 830 | U.S. Circuit Court for the District of Washington | 1904
This case was commenced in the superior court of the state of Washington for Spokane county by filing a motion, supported by an affidavit, for a writ of mandate, to redress alleged wrongs by compelling the respondent, which is a fraternal society, to restore the relator to her rights as a member of the society and holder of a certificate of life insurance, and to pay her $n,ooo as compensation for injuries alleged to have been suffered in consequence of an illegal and unjustifiable attempt to exclude her from the society, and forfeit her rights as holder of said certificate. The procedure by which the case was initiated is the procedure provided by the Code of Washington for mandamus cases, and the relief prayed for, including the recovery of damages, is sought through and by means of a writ of mandate. The respondent caused the case to be removed from the state court in which it was commenced into this court, and now resists a motion to remand on the ground that there is included in the case an action to recover damages.
The case is not an action for damages in any form of action known to the common law, and it lacks the requisites as to pleadings and jurisdictional process prescribed by the Code for the commencement of a civil action. Provision is made in the chapter of the Code relating to mandamus proceedings for assessing damages and costs when a judgment is given in favor of the applicant, and in such cases a peremptory writ must issue without delay. 2 Ballinger’s Ann. Codes & St. § 5765; Pierce’s Code, § 1419. Under this statute the right to recover damages is made dependent upon a right to have a peremptory writ of mandamus; hence a case commenced as a special proceeding cannot be converted into an ordinary civil action to recover
Motion to remand granted
