82 Wash. 420 | Wash. | 1914
This cause is before us on an alternative writ of mandate.
The application for the writ arose out of the following facts: A divorce action, wherein Sarah A. Gust was plaintiff and Adolph Gust was defendant, was heard and determined in the superior court of King county before the respondent judge. Upon appeal to this court, the judgment was modified, except as to the attorney fee which had been fixed by the court at the sum of $5,000 in favor of the wife against the husband.
We think the motion was correctly decided. Upon the facts stated, the ruling falls within the principle announced in State ex rel. Lefebvre v. Clifford, 65 Wash. 313, 118 Pac. 40; Fortson Shingle Co. v. Skagland, 77 Wash. 8, 137 Pac. 304; State ex rel. Gourley v. Smith, 78 Wash. 292, 139 Pac. 60, and Nance v. Woods, 79 Wash. 188, 140 Pac. 323. In the Lefebvre case, which was the pioneer case in the construction of the statute, Laws 1911, p. 617 (3 Item. & Bal. Code, § 209-1), the relator had applied for and obtained a continuance to a day certain. Before that date, the judge made an ex parte order which the relator conceived to be prejudicial. Before the date to which the case had been continued, the relator filed an affidavit of prejudice, and a motion for a change of judges, which was denied. In sustaining the ruling of the trial court we said:
“We cannot conclude that it was intended by the act that a party could submit to the jurisdiction of the court by waiving his rights to obj ect until by some ruling of the court in a case he becomes fearful that the judge is not favorable to his view of the case. In other words, he is not allowed to speculate upon what rulings the court will make on propositions that are involved in the case and, if the rulings do not happen to be in his favor, to then for the first time raise the jurisdictional question.”
In the case at bar, when the respondent judge expressed an opinion unfavorable to the relator, she caused the order to be discharged. A few days later she commenced a new proceeding of the same kind, which was assigned to the respondent judge for trial. She then sought a change of judges by filing an affidavit of prejudice. In short, she sought to accomplish by indirection that which she could not have obtained on the hearing of the first order after the judge had expressed an opinion adverse to her claim. If the affidavit
The case below not only bore the title of the divorce action, but was a summary proceeding in that action. ■
The writ is denied upon both grounds.
Mount, Parker, Morris, and Main, JJ., concur.