102 Wash. 273 | Wash. | 1918
This is an application for a writ of mandamus, directed to the Honorable Walter M. French, as judge of the superior court of Kitsap county, commanding him to vacate an order for a change, of venue entered in a cause pending in the court named.
The cause is before us on the application for the writ and the return of the judge thereto. From these we do not find any substantial disagreement as to the facts.
When it became known that the King county judge would be in attendance in Kitsap county on May 18, 3917, counsel, some of whom resided in King county and had their offices therein, were notified that the visiting judge would hear the pending motions in the present case on that day, notwithstanding the actions
The statute prescribing the action of a judge of .a superior court against whom prejudice is established by the filing of the affidavit mentioned therein reads in part as follows:
“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.” Rem. Code, § 209-1,
It is true that here no formal entry was made calling in another judge to hear Jhe cause, and it is true also that the trial judge states in his return that the judge who entered upon the hearing did not do so under his direction. But elsewhere it appears that the presiding judge recognized his own disqualification and had knowledge that another judge was proceeding with the hearings. A formal order calling in another judge was not a jurisdictional requirement. To act or acquiesce was sufficient in this regard, and we think there is no question other than that there was here both action and acquiescence. It follows that the subsequent order changing the venue was beyond the powers of the court.
The order was erroneous for another reason. It was made ex parte. The defendants had appeared in the action, and the statute entitled them to notice of all subsequent proceedings.
The writ will issue.
Ellis, C. J., Chadwick, Mount, Main, Parker, Holcomb, and Webster, JJ., concur.