Kelly v. Grand Circle, Women of Woodcraft

U.S. Circuit Court for the District of Washington

Kelly v. Grand Circle, Women of Woodcraft

129 F. 830, 1904 U.S. App. LEXIS 4776

CourtU.S. Circuit Court for the District of Washington

DecidedMay 2, 1904

DocketNo. 1,131

StatusPublished

Cited by5 cases

This text of 129 F. 830 (Kelly v. Grand Circle, Women of Woodcraft) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Grand Circle, Women of Woodcraft, 129 F. 830, 1904 U.S. App. LEXIS 4776 (circtdwa 1904).

Pincite

Opinion

HANFORD, District Judge.

This case was commenced in the superior court of the state of Washington for Spokane county by filing a motion, supported by an affidavit, for a writ of mandate, to redress alleged wrongs by compelling the respondent, which is a fraternal society, to restore the relator to her rights as a member of the society and holder of a certificate of life insurance, and to pay her $n,ooo as compensation for injuries alleged to have been suffered in consequence of an illegal and unjustifiable attempt to exclude her from the society, and forfeit her rights as holder of said certificate. The procedure by which the case was initiated is the procedure provided by the Code of Washington for mandamus cases, and the relief prayed for, including the recovery of damages, is sought through and by means of a writ of mandate. The respondent caused the case to be removed from the state court in which it was commenced into this court, and now resists a motion to remand on the ground that there is included in the case an action to recover damages.

The case is not an action for damages in any form of action known to the common law, and it lacks the requisites as to pleadings and jurisdictional process prescribed by the Code for the commencement of a civil action. Provision is made in the chapter of the Code relating to mandamus proceedings for assessing damages and costs when a judgment is given in favor of the applicant, and in such cases a peremptory writ must issue without delay. 2 Ballinger’s Ann. Codes & St. § 5765; Pierce’s Code, § 1419. Under this statute the right to recover damages is made dependent upon a right to have a peremptory writ of mandamus; hence a case commenced as a special proceeding cannot be converted into an ordinary civil action to recover [831]*831damages by repleading, and severance of the demand for damages from the application for a writ of mandamus. The case is not ancillary to any other case of which this court has acquired jurisdiction, but is an original independent case, not cognizable in this court, because it is not a suit of a civil nature at common law or in equity, and a writ of mandamus is not necessary to the exercise of the jurisdiction of this court. 18 Encyc. Pl. & Pr. 171; Bath County v. Amy, 13 Wall. 244-251, 20 L. Ed. 539; In re Vintschger (C. C.) 50 Fed. 459; Gares v. Building Association (C. C.) 55 Fed. 209; Indiana ex rel. City of Muncie v. Railway Company (C. C.) 85 Fed. 1; Hair v. Burnell (C. C.) 106 Fed. 280.

Motion to remand granted

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HANFORD, District Judge.

This case was commenced in the superior court of the state of Washington for Spokane county by filing a motion, supported by an affidavit, for a writ of mandate, to redress alleged wrongs by compelling the respondent, which is a fraternal society, to restore the relator to her rights as a member of the society and holder of a certificate of life insurance, and to pay her $n,ooo as compensation for injuries alleged to have been suffered in consequence of an illegal and unjustifiable attempt to exclude her from the society, and forfeit her rights as holder of said certificate. The procedure by which the case was initiated is the procedure provided by the Code of Washington for mandamus cases, and the relief prayed for, including the recovery of damages, is sought through and by means of a writ of mandate. The respondent caused the case to be removed from the state court in which it was commenced into this court, and now resists a motion to remand on the ground that there is included in the case an action to recover damages.

The case is not an action for damages in any form of action known to the common law, and it lacks the requisites as to pleadings and jurisdictional process prescribed by the Code for the commencement of a civil action. Provision is made in the chapter of the Code relating to mandamus proceedings for assessing damages and costs when a judgment is given in favor of the applicant, and in such cases a peremptory writ must issue without delay. 2 Ballinger’s Ann. Codes & St. § 5765; Pierce’s Code, § 1419. Under this statute the right to recover damages is made dependent upon a right to have a peremptory writ of mandamus; hence a case commenced as a special proceeding cannot be converted into an ordinary civil action to recover [831]*831damages by repleading, and severance of the demand for damages from the application for a writ of mandamus. The case is not ancillary to any other case of which this court has acquired jurisdiction, but is an original independent case, not cognizable in this court, because it is not a suit of a civil nature at common law or in equity, and a writ of mandamus is not necessary to the exercise of the jurisdiction of this court. 18 Encyc. Pl. & Pr. 171; Bath County v. Amy, 13 Wall. 244-251, 20 L. Ed. 539; In re Vintschger (C. C.) 50 Fed. 459; Gares v. Building Association (C. C.) 55 Fed. 209; Indiana ex rel. City of Muncie v. Railway Company (C. C.) 85 Fed. 1; Hair v. Burnell (C. C.) 106 Fed. 280.

Motion to remand granted

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Bluebook (online)

129 F. 830, 1904 U.S. App. LEXIS 4776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-grand-circle-women-of-woodcraft-circtdwa-1904.

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