State ex rel. Abernethy v. Moss

Citations

• 13 Wash. 42
• 43 P. 373
• 1895 Wash. LEXIS 47

Syllabus

<p>APPEAL —.SERVICE OF STATEMENT — OBJECTIONS TO — WHERE RAISED — MANDAMUS — WAIVER OF OBJECTIONS TO ALTERNATIVE WRIT — LAW OF THE CASE — JUDGMENT — RES JUDICATA.</p> <p>A statement’ of facts will not be stricken out by the appellate court upon the ground that the statement was served before it had been filed, when the only showing thereof is an affidavit presented to the appellate court alleging such fact. (Dunbar, J., dissents).</p> <p>Objection to a statement of facts because a copy of the same was served before'the original was filed should be made to the trial, and not to the appellate, court.. (Dunbar, J., dissents).</p> <p>An objection that an alternative writ of mandate does not show upon its face that the petitioner therefor is entitled to any relief is waived, when the respondents, without demurring thereto, answer and take issue upon the matters alleged in the petition.</p> <p>Where the decision of the appellate court, in dismissing an action to recover against a town, was based on the ground that plaintiff held valid, and binding claims against the town, and that his remedy should have been by application for mandamus, the legality of such claims becomes thereby settled and cannot be questioned in subsequent proceedings in mandamus between the same parties. .</p> <p>The objection that the merits of the controversy in the. prior action had never been judicially passed on for the reason that the action had been decided upon a demurrer in favor of respondents cannot be- raised after the appellate court has based its decision upon the validity of the claim against the town and such decision has been allowed to stand as the law of the case, without application on the part of the respondents for a modification of the decision in that particular.</p> <p>The failure of parties to an appeal to urge alleged errors in their brief, will preclude their being raised in a petition for a rehearing.</p>