Edwards v. Tremper

49 Wn.2d 677 (1957)

305 P.2d 1062

ROBERT L. EDWARDS et al., Appellants, v. A.A. TREMPER, as Treasurer of King County, Respondent.[1]

No. 33576.

The Supreme Court of Washington, En Banc.

January 22, 1957.

George R. Mosler (John Hay, of counsel), for appellant.

Charles O. Carroll and Charles R. Lonergan, Jr., for respondent.

PER CURIAM:

This is a mandamus action in which the plaintiffs sought to require the defendant, as treasurer, to mark upon certain deeds that no excise tax was due, and to accept plaintiffs' affidavits with reference thereto.

The defendant demurred to the plaintiffs' complaint upon all of the statutory grounds. The demurrer was sustained.

The plaintiffs having failed to plead further and having *678 elected to stand upon the complaint, the court entered an order of dismissal. The plaintiffs have appealed.

[1] Mandamus is an extraordinary proceeding. It is permitted only when the complaint alleges facts sufficient to establish that no plain, speedy, or adequate remedy at law exists. State ex rel. Schoblom v. Anacortes Veneer, 42 Wn. (2d) 338, 255 P. (2d) 379 (1953).

The court did not indicate upon which of the statutory grounds it had sustained the demurrer. The complaint is fatally defective, in that it does not allege sufficient facts to establish that the appellants had no plain, speedy, or adequate remedy in the ordinary course of law.

[2] By erroneously seeking the extraordinary remedy of mandamus, the appellants will not be deemed to have made an election which would bar a subsequent action on the merits, seeking a proper remedy. State ex rel. Hamilton v. Cohn, 1 Wn. (2d) 54, 60, 95 P. (2d) 38 (1939).

The judgment of the trial court is affirmed.

February 25, 1957. Petition for rehearing denied.

[1] Reported in 305 P. (2d) 1062.