44 Wash. 554 | Wash. | 1906
This is an original application for a writ of certiorari. The relator, a railroad corporation, alleges that on July 16, 1906, it filed in the superior court of Pierce county its petition for the condemnation of certain real estate belonging to Stef ano Barbare and Lecretia Barbare, his wife; that in the regular course of procedure an order was made adjudging a public use; that a jury, duly impaneled, returned a verdict for $16,000, damages to be paid by the relator; that on October 3, 1906, the judge of the superior court, without ■ notice, entered an ordinary money judgment for such damages, instead.of decreeing the same to be paid by the relator prior to its talcing possession of the property; that immediately thereafter the relator served and filed a
The relator’s attorneys candidly acknowledge themselves to be in serious doubt as to whether the relator is entitled to a writ of review, or whether the orders of which it complains may not be reviewed upon the appeal- already perfected. They admit that they have presented this application out of the abundance of caution for the complete protection of the rights of their client, but upon the hearing have insisted that this court has jurisdiction to review in this proceeding the orders above mentioned. Although in Western American Co. v. St. Ann Co., 22 Wash. 168, 60 Pac. 158, we held an appeal would not lie in a condemnation proceeding from an order adjudging a public use, and assigned as our reason that under the condemnation statute, Bal. Code, §• 5645, no question could be considered on appeal other than the propriety and justness of the amount of damages,, we have since had occasion to further consider the same section in State ex rel. McCormick v. Superior Court, 43 Wash. 91, 86 Pac. 205, where we held that an appeal from the final
“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 the damages to be selected from persons other than those regularly drawn by the jury commissioners. It is contended that the above matter cannot be reviewed on appeal from the judgment awarding damages. The argument is based upon the following portion of Bal. Code, § 5645, to wit: ‘And such appeal shall bring before the supreme court the propriety and justness of the amount of damages in respect to the parties to the appeal.’ It is insisted that, inasmuch as this court held that, the above does not include the right of appeal from the adjudication as to the public use and necessity, but is confined to the propriety and justness of the amount of damages, it follows that no questions can be reviewed on appeal except evidentiary matters, or those which directly affect the amount of damages. We think, however, that- questions involved in the immediate procedure or trial by which the damages are ascertained may be reviewed on appeal.”
The substantial effect of the above language is to hold that, upon the hearing of an appeal taken from a final judgment awarding damages in a condemnation proceeding, this court may inquire into all matters of procedure, practice, and evidence which incidentally arise during the trial of the question of the amount of damages to be assessed, and it would naturally follow that any order made afterwards, arising out of or based upon the verdict for damages, may also be reviewed upon such appeal. To hold otherwise would necessitate a procedure which might frequently result in this
As the relator will be entitled to have all the questions which it now presents finally determined upon its appeal already perfected, its application for a writ of review is denied.
Mount, C. J., Dunbar, Root, Fullerton, Hadley, and Rudkin, JJ., concur.
