44 Wash. 150 | Wash. | 1906
This is an application for a writ of mandamus to be directed to the Honorable B. S. Steiner, judge of the superior court of the state of Washington in and for Okanogan county, commanding him to proceed with the trial of an action. The relator, J. H. McDonald, alleges that he is the plaintiff in an action for damages on an injunction bond now pending in the superior court of Okanogan county, wherein C. A. Blatt, as principal, and Burt Hawthorn and H. G. Bragg, as sureties, are defendants; that after personal service the defendants filed their motion to quash the summons ; that prior to the hearing of said motion the relator filed his motion for a default; that the motions for default
Upon the relator’s application, an alternative writ of mandamus was issued, directing the respondent to proceed with the trial, or appear in this court and show cause why he should not do so. The respondent has filed his answer, from which it appears that, during the year 1905, one C. A. Blatt, being the C. A. Blatt mentioned in the relator’s affidavit, instituted an action in the superior court of Okanogan county against J. H. McDonald, the relator herein, to determine Blatt’s right to the exclusive possession of a tract of land embraced within certain mining claims in Okanogan county; that in said action a temporary order was granted, enjoining McDonald from fencing the land in controversy; that an injunction bond was given, in which Blatt was principal and Hawthorn and Bragg were sureties; that upon trial, a non-suit was entered upon the motion of McDonald, the action was dismissed, and the restraining order was dissolved; that the action now prosecuted by McDonald concerning which
This proceeding is now before us for determination upon the relator’s affidavit and the respondent’s answer. Certified copies of the pleadings and orders in the case of McDonald v. Blatt et al., have been filed in this court for our consideration in connection therewith. These records show that the
Mr. Spelling, in the second edition of his work on Injunctions and Other Extraordinary Remedies, at § 1394, uses the folloAving language:
“Mandamus is the appropriate remedy at the hands of superior and supervisory courts to set the machinery of inferior courts in motion. It does not direct how such courts shall act, or to AA'hat effect they shall exercise their powers, but only to compel action when they refuse to act at all, and have come to a standstill. Superior courts having general superintending control of all inferior courts may, in the maintenance of sucli control, issue, hear, and determine writs of mandamus, whenever there is a failure or a refusal of an inferior tribunal to act in a matter in which it is its plain duty to act and its refusal deprives or bars anyone of a substantial, legal, or equitable right.”
“As a general rule a continuance should be granted upon facts that show that justice requires that the cause should await the trial and conclusion of another suit between the same parties; but the parties to the two actions must be identical, the issues must be the same, and it is essential that the entire relief demanded and sought for in the first action can be awarded in the other. It seems that the granting of a continuance or motion to stay in such cases is governed by the same rules as in the plea of another action pending, and the test lies in the fact whether the evidence would support both actions. The granting or refusal of a stay of proceedings in such cases is in a measure discretionary with the court, but this discretion should not be so extended as to deprive a party of all remedy for his cause of action.” 9 Cyc. 88, 89.
We think the respondent was exercising his judicial discretion in refusing to empanel a jury to assess damages until an issue could be obtained and trial also had in the second action brought by said Blatt against McDonald, and we fail to find that he acted arbitrarily or that he has abused such discretion. The parties and the issues in the two actions are substantially the same, and it may be that before entire relief can be granted the second action instituted by Blatt against McDonald should be tried. The respondent has not arbitrarily refused to proceed, nor has he refused to take jurisdiction. If the relator is anxious for a trial, he can obtain the same at an early date by forcing an issue in the second action brought by Blatt. When he does this, the respondent will proceed to try both actions with such promptness as the business of his court will permit.
The application for a peremptory writ is denied.
Mount, C. J., Root, Dunbar, Rudkin, Fullerton, and Hadley, JJ., concur.