43 Wash. 91 | Wash. | 1906
An application was made: to this court for a writ of review directed to the superior court of Walla Walla county. The affidavit avers that the relator is the owner of certain real estate in Walla Walla county, and that om the 12th day of May, 1906, the Oregon Railroad and Navigation Company, a corporation, filed in the superior court of said county a petition for the condemnation of said land; that
The affidavit further sets forth that at the same time the court ordered its clerk to issue to the sheriff of said county an open venire returnable on June 16, 1906, by which the sheriff was directed to' summon twenty-four jurors from which a jury should he impaneled to assess the damages for the taking of said lands; that thereafter a jury of twelve men was selected from twenty-four who were summoned upon an open venire in pursuance of the said order, and the jury so impaneled assessed the damages. It is further alleged that theretofore the jury commissioners of said county had, as provided by law, duly drawn the names of thirty-nine men to serve as petit jurors during the month of June; 1906, and that said jurors so drawn were summoned to appear and serve in said court on and after the 18th day of June, 1906, and until discharged by the court; that none of said jurors so. drawn were permitted to serve upon the jury impaneled to assess the damages aforesaid, and that the court thereby exceeded its jurisdiction. The record shows that due notice of this application was served upon the petitioner in the condemnation proceeding, hut no appearance has been made in this court.
It is well established in this state that the adjudication as to the public use and necessity for which property is sought
“ . . . or that after diligent inquiry his residence is unknown or cannot be ascertained by such deponent, service may be made by publication thereof in any newspaper published in the county where such lands are situated once a week for two successive weeks; . . . and such publication shall be deemed service upon each of such nonresident person; or persons, whose residence is unknown.”
Inasmuch as the relator shows- affirmatively that a notice was published, and fails to show that it was not published within the terms -of the above statute-, we will presume that it was soi done. The affidavit therefore discloses no- error or lade of jurisdiction appertaining to- the adjudication as to the public use or necessity which calls for the writ of review.
It is, however, urged that the writ should issue to review the action of the court in ordering the open venire for the summoning of jurors, and in causing the jurors who assessed
Mourt, O. J., Fulleetor, Oeow, Durbar, Rudkir, and Root, JJ., concur.