State ex rel. Olson v. Christopher

Mount, C. J.

This appeal is from an order of the superior court of King county, denying a writ of prohibition against a justice of the peace in that county. The facts appear to be as follows: An action was brought before J. Railsback, a justice of the peace in and for Kent precinct, *73 in King county, charging the relator with the crime of keeping open a saloon on Sunday. Thereafter the relator, as defendant in the criminal action, filed a motion and affidavit in the justice’s court for a change of venue toi the next nearest justice of the peace. Subsequently the said justice of the peace transferred the case to respondent, who was a justice of the peace for Christopher precinct im King county. Thereupon the relator filed a petition in the superior court of King county, praying for a writ prohibiting the respondent from trying said cause, upon the ground that he was not the “next nearest justice of the peace in the same county who is not of kin to either party, sick, or absent from the county, or interested in the result of the action.” The superior court granted a show cause order and thereafter, upon the showing made, denied the writ. The relator appeals.

We shall assume, without intending to decide, that the superior court had jurisdiction to issue the writ because the question of jurisdiction is not presented here. See, State ex rel. Miller v. Superior Court, 40 Wash. 555 , 82 Pac. 877 . The judgment must be affirmed upon the merits, for the reason that there was evidence before the lower court that the respondent was, in fact, the next nearest justice of the peace. This question was one of fact, and was determined by the justice of the peace in the first instance, and by the judge of the superior court upon the return to the show cause order. The record before us does not warrant a reversal of this finding of fact. The order appealed from is therefore affirmed.

Crow, Root, Dunbar, Hadley, Hullerton, and Rudkin, JJ., concur.