State ex rel. Warner v. Superior Court

97 Wash. 472 | Wash. | 1917

Mount, J.

This is an application for a writ of certiorari to review an order of the superior court of Chelan county denying to the relator a writ of assistance for the possession of certain real estate.

The facts, as shown by the application and the answer thereto, are substantially as follows: On the 6th day of January, 1915, Selena Shantz and F. E. Shantz executed their three promissory notes, aggregating $850, in favor of the relator. These notes were secured by a second mortgage upon an orchard tract of farming land then owned and occupied by the makers of the notes and mortgage. This mortgage was subject to another mortgage of $4,000, then of record, in favor of Veronica Cressman. On January 15, 1916, one of the notes held by the relator becoming due, relator brought an action to foreclose his mortgage for the amount of the notes—$850, with interest, costs, and attorney’s fees. The makers of the notes and mortgage were the only parties defendant. Thereafter a decree of foreclosure was entered, and on May 20, 1916, the property was sold to satisfy the relator’s mortgage, and was bid in by him for the sum of $400. This sale was afterwards confirmed. In the meantime, on April 27, 1916, Mrs. Cressman brought an action to foreclose her mortgage for $4,000. The makers of the mortgage and the relator, F. E. Warner, were made parties defendant. The mortgagors did not resist the foreclosure. It was resisted only by the relator, Warner, and a decree was entered adjudging this $4,000-mortgage to be a prior mortgage and ordering a sale of the property to satisfy the same. This sale was had on March 24, 1917. After this sale, Mrs. Cressman, who bid in the property for the face of her mortgage, went into possession of the property by consent of the mortgagors, and now has possession. On May 28, 1917, this relator applied to the superior court of Chelan county, where the property was situated, for a writ of assistance to put him in possession under his sale made pursuant.to the foreclosure of the $850 mortgage. The trial court denied the writ of assistance, and he now applies to this court for a writ to review that order. No specific error of the trial court in denying the writ of assistance is pointed out. The applicant states

“That the action of said court in refusing to grant said writ of assistance as aforesaid was erroneous and not according to the rules of the common law.”

Upon the record before us, it is plain that the relator had a subsequent mortgage upon the property in question. He foreclosed that mortgage, bid the property in, and the sale was confirmed by an order of the court. Prior to the time he obtained possession, a prior mortgage was foreclosed— the relator being a party defendant in that foreclosure—the property was sold, and the prior mortgagee bid in the property and took possession thereof by consent of the mortgagors.

It seems too plain for argument that the relator here has the rights of a redemptioner only. Until such redemption, he clearly has no right to possession of the mortgaged premises ahead of the prior mortgagee, who has foreclosed her mortgage, bid in the property at the foreclosure sale, and is now in possession of the premises. This seems plain upon the face of the record. If the trial court erred in denying the writ of assistance, the error is not pointed out in the application for the writ. A statement that the action of the court “in refusing to grant said writ of assistance as aforesaid was erroneous and not according to the rules of the common law” is not sufficient to point out a specific error when none appears upon the face of the record.

“In the absence of special statutory provisions it is well settled that before the court will grant the writ it must appear not only that the inferior tribunal has committed some error of law, but also that the error has caused substantial harm, and that the petitioner has been guilty of no laches in seeking his remedy. The common rule is that where the relator shows no equity, and, so far as his legal rights go, no injury not remediable at law, it is proper to deny the use of the writ.” 5 R. C. L. 255.

See, also, 6 Cyc. 784, and cases there cited.

We are satisfied that no sufficient cause is shown for the issuance of the writ, and the application is therefore denied.

Ellis, C. J., Holcomb, Parker, and Fullerton, JJ., concur.