State ex rel. Cleek v. Tallman, 38 Wash. 132

State ex rel. Cleek v. Tallman

38 Wash. 132 | Wash. | 1905

Dunbar, J.

This matter comes up upon an application for a writ of prohibition, restraining the superior *133court of the state of Washington for King county from vacating a judgment heretofore rendered, entitled, The City of Ballard v. Marie Vincente Hadevis and Frank Hadevis, her husband, and setting aside the sale of certain real estate made to satisfy said judgment. Said action was instituted for the purpose of foreclosing a street assessment lien on certain property in the town of Ballard. The summons was by publication, the publication having been made upon an affidavit by the city attorney that the defendants were not residents of the state of Washington. Within a year of the rendering of said judgment, the application to set aside the judgment was made, on the ground that no notice had been given to the owners of the property, and that they had been, during all of the time of publication, and for a long time prior thereto, residents of the state of Washington. The application to vacate showed that the defendants had tendered to the treasurer of the said city of Ballard the full amount of taxes, penalty, .and interest, claimed by the city, but that said amount so tendered was refused, and, upon such refusal, had been deposited with the clerk of the superior court for the use of said city, and for the payment of said taxes. Upon this showing the court indicated that it would vacate the judgment.

We think the writ of prohibition cannot be properly issued in this case. While ordinarily there is no appeal from an order vacating a judgment, yet, if it' is a final order which affects the substantial rights of the parties, an appeal will lie'. If this order complained of does not affect the substantial rights of the relator, he has no standing which would warrant him in asking for this writ. If it does affect his substantial rights finally, then the order vacating the judgment would be appealable, and the writ would not issue, under the uniform rulings of this court.

*134But the relator insists that an appeal would not lie for the reason that the subject of the controversy has ceased, because the taxes, penalty, and interest have been paid, and that there would be nothing left to litigate but the costs of the action, and that this court would, under its previous rulings, therefore refuse to entertain an appeal. This is true. But it is also true that we have as uniformly decided that the extraordinary writ of prohibition would not run for the purpose of giving this court jurisdiction to try an issue which it would not have jurisdiction to try on appeal in other words, that the relator would not be allowed by indirection to do that which he could not directly do. The question of costs only will not be litigated by this court on an application for a writ of prohibition, any more than it will be on an appeal.

The writ will be denied.

Mount, C. J., Fullerton, and Hadley, JJ., concur. Budkin, Boot, and Crow, JJ"., took no part.