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enticing the husband away, or for inducing him to abandon or desert his wife. We are quite safe in saying that at common law no such action could have been maintained."

In Lellis v. Lambert (Ont.) supra, the court held that neither at common law nor by statute (Ont. Rev. Stat. chap. 132, §§ 2, 3, 4, and 14) could a wife maintain an action founded on adultery with her husband, saying that the statute referred to increased only the woman's power to sue for a violation of a property right. In that case the court expressly overruled Quick v. Church (1893) 23 Ont. Rep. 263, wherein it was held that a married woman could maintain a suit at common law against one who, by procurement and enticement, lived in adultery with her husband, the court saying: "The action for criminal conversation may be a disgrace to our law, but it would be a still greater disgrace to our law if it existed only for the husband and not for the wife."

In Weston v. Perry (Ont.) supra, the court, following and citing Lellis v. Lambert (Ont.) supra, held that neither at common law nor under the Married Woman's Act could a wife maintain an action against another woman for criminal conversation with her husband, or alienation of his affections.

So, in Lawry v. Lawry (1901) 2 Ont. L. Rep. 162, the court held that the wife of a husband, who had been enticed and seduced by another woman

to have criminal intercourse with her, could not maintain an action against such other woman for the criminal conversation.

In England the "Matrimonial Causes Act" (20 & 21 Vict. chap. 85, § 59) abolishes the action of criminal conversation. Prior to that act, it was said in Lynch v. Knight (1861) 9 H. L. Cas. 577, 11 Eng. Reprint, 857, 8 Eng. Rul. Cas. 382, by way of dictum: "The loss of conjugal society is not a pecuniary loss, and I think it may be a loss, which the law may recognize, to the wife as well as to the husband. The wife is not the servant of the husband, and the action for criminal conversation by the husband does not, like the action by a father for seduction of a daughter, rest on any such fiction as a loss of the services of the wife. The better opinion is that wife could not maintain or join in an action for criminal conversation against the paramour of her husband, who had seduced him. But I conceive that this rests on the consideration that, by the adultery of the husband, the wife does not necessarily lose the consortium of her husband; for she may, and, under certain circumstances she ought to, condone and still enjoy his society; whereas condonation of conjugal infidelity is not permitted to the husband, and, by reason of the injury of the seducer, the consortium with the wife is necessarily forever lost to the husband." W. J. K.



SUPERIOR COURT of King County, Washington, et al.

Washington Supreme Court (Dept. No. 2) - April 10, 1918.

(101 Wash. 81, 172 Pac. 257.)

Mandamus to compel exercise of jurisdiction.

1. Mandamus lies to compel an inferior court to exercise jurisdiction which it has erroneously declined to do.

[See note on this question beginning on page 582.]

(101 Wash. 81, 172 Pac. 257.)

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2. Jurisdiction is the power by which courts take cognizance of and decide cases.

[See 7 R. C. L. 1029.]

Insane person - power of court to release from hospital.

3. The power of a court of general jurisdiction to release a person who has recovered his sanity after being committed to an asylum is not destroyed by a statute permitting the

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(Mount and Parker, JJ., dissent.)

APPLICATION for a writ of mandate to compel the respondent judge to take possession of and hear relator's petition as to the sanity of her father, under parole as an insane person. Writ to issue. The facts are stated in the opinion of the court. Messrs. Davis & Neal, for petition


The superior courts of the state of Washington have power, in the absence of a specific statute to that effect, to restore to capacity a man once declared insane.

23 Cyc. 1120; State ex rel. Keasal v. Superior Ct. 76 Wash. 291, 136 Pac. 147; Moore v. Perrott, 2 Wash. 1, 25 Pac. 906; Reformed Presby. Church v. McMillan, 31 Wash. 643, 72 Pac. 502; Alaska Bkg. & S. D. Co. v. Noyes, 64 Wash. 672, 117 Pac. 492; Re Ostlund, 57 Wash. 359, 135 Am. St. Rep. 990, 106 Pac. 1116.

Mr. James B. Kinne, for respondent judge:

Equity jurisdiction of the court does not exist in the United States except through statutory enactments.

3 Pom. Eq. Jur. 3d ed. § 1313; Oakley v. Long, 10 Humph. 253; Fentress v. Fentress, 7 Heisk. 428; Dodge v. Cole, 97 I. 338, 37 Am. Rep. 111; Hamilton v. Traber, 78 Md. 26, 44 Am. St. Rep. 258, 27 Atl. 229; Hughes v. Jones, 116 N. Y. 67, 5 L.R.A. 632, 15 Am. St. Rep. 386, 22 N. E. 446; Dowell v. Jacks, 58 N. C. (5 Jones, Eq.) 417; Sporza v. German Sav. Bank, 192 N. Y. 8, 84 N. E. 407; 22 Cyc. 1120.

The legislature had power to delegate authority over insane persons to the superintendent of an insane hospital as a part of the police power of the state.

12 Cyc. 925; Carstens v. De Sellem, 82 Wash. 643, 144 Pac. 934; State ex rel. Chicago, M. & St. P. R. Co. v. Public Service Commission, 94 Wash. 274, P.U.R 1917C, 631, 162 Pac. 523.

Chadwick, J., delivered the opinion of the court:

This is an application for a writ of mandate to compel the respondent superior judge to take jurisdiction of, and hear, the petition of the relator, who appears as the next friend of Judge R. Andrews, who is under the parole of a superior judge of King county as an insane person. Relator filed his petition in the original proceeding, setting up the present sanity of Andrews, and asking the court to so declare by order or judgment.

The wife of Andrews, who had theretofore been appointed as his guardian, appeared by counsel and demurred to the petition. The matter coming on regularly to be heard, the court entertained a plea to the jurisdiction of the court to hear the petition, and held that the superior court was without jurisdiction to hear and determine. At the request of counsel a judgment of dismissal was withheld until application could be made to this court for a writ of mandate.

Although counsel waives all question as to the propriety of granting the writ, we have not been able to overcome the objection sua sponte of at least one member of the department, that the writ should not issue for the reason that relator has an adequate remedy by appeal. It is said that the writ cannot is

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Jurisdiction is the power to hear and determine. It is the power by which courts take cognizance of and decide cases.


"Jurisdiction is of two sortsjurisdiction over the subject-matter, and jurisdiction over the party with reference to that subjectmatter." 4 Words & Phrases, p. 3884.

"It is settled beyond controversy that where a court, acting on an erroneous view of the law, declines jurisdiction of a cause, mandamus will lie to compel it to take cognizance thereof." Note in Ann. Cas. 1915D, 199.

See also 26 Cyc. 190 et seq.: It was "one of the ancient offices of this writ . to compel action by lower judicial tribunals respecting matters properly before them and within their jurisdiction. If such courts decline to exercise their judicature or to decide matters pending before them, mandamus has always been regarded as the appropriate means by which to set in motion their jurisdictional power. It lies to compel the performance of whatever appertains to the duty of lower courts, where there has been for any reason a refusal to act. Its agency in cases of this class is confined to setting in motion the judicial activities so that a decision will be reached, but it does not extend to any direction as to what that decision ought to be." Crocker v. Justices of Superior Ct. 208 Mass. 162, 94 N. E. 369, 21 Ann. Cas. 1061.

It was so held in State ex rel.

Shannon v. Hunter, 3 Wash. 92, 27 Pac. 1076, where the court, although admitting a doubt which to us seems fanciful, held on authority that "the proper remedy, where a cause has been erroneously dismissed for want of jurisdiction, is mandamus." mandamus." This case was followed in State ex rel. Maltby v. Superior Ct. 7 Wash. 223, 34 Pac. 922. In this case the court says the rule rests in the highest authority. Of this there can be no question. It may be questioned whether any authority can be found to the contrary. See also State ex rel. Smith v. Parker, 12 Wash. 685, 42 Pac. 113; State ex rel. Smith v. McClinton, 17 Wash. 45, 48 Pac. 740. Lack of space permits the citation of but few of scores of cases. The rule is recognized by every textwriter, and may be found in every encyclopedia.

Says Mr. High in his Extraordinary Legal Remedies: "The jurisdiction by the writ of mandamus over inferior judicial tribunals, although closely guarded and jealously exercised by the courts, is too well established to admit of controversy, and forms one of the most salutary features of the general jurisdiction of the courts by mandamus. It is most frequently invoked for the purpose of setting inferior courts in motion, and to compel them to act when action has been

either refused or delayed. The earlier remedy adopted in England for the refusal or neglect of justice on the part of the courts was by writ of procedendo ad judicium. This was an original writ, issuing out of chancery to the judges of any subordinate court, commanding them in the King's name to proceed to judgment, but without specifying any particular judgment. If this writ was disobeyed, or if the judges to whom it was addressed still neglected or refused to act, they were liable to punishment for contempt, or by an attachment returnable either in the King's bench or in the common pleas. The use of the writ of procedendo for the purpose of

(101 Wash. 81, 172 Pac. 257.)

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quickening the action of inferior courts, and preventing a delay of justice, has, in modern times, been superseded by the writ of mandamus. And the latter is now regarded as the proper, if not the only, remedy by which the sovereign power may compel the performance of official duty by inferior magistrates and officers of the law." officers of the law." High, Extr. Leg. Rem. §§ 147, 148. See Spelling, Inj. & Extr. Rem. 2d ed. § 171; Works, Courts & Jurisdiction, p. 620; Merrill, Mandamus, §§ 36 and 203; Tapping, Mandamus, § 154.

The theory advanced against the weight of authority is: If a court has no jurisdiction, it must be granted that it has jurisdiction to hold that it is without jurisdiction, and, this being so, a refusal of a court to take jurisdiction is no more than error and, like any other error, is to be corrected on appeal. Of all the text-writers, Mr. Bailey in his work on Jurisdiction is the only one who seems to lend sanction to this theory. He says: "Some courts make the distinction that where the court entertains jurisdiction then its decision cannot be controlled, but where it refuses to exercise jurisdiction it may be compelled. On first impression it would seem that where the jurisdiction of the court is invoked by petition or other proceeding, and the court entertains the proceeding to the extent of acting upon it and determining its sufficiency or insufficiency, it has assumed jurisdiction, and, though its determination may have been erroneous, this is but an error of judgment, that it has exercised its judgment and discretion, which are not subject to review by mandamus, and that ordinarily such error may be corrected upon appeal or by writ of error. Where, however, such determination cannot be reviewed, then the writ might issue to prevent failure of justice." Bailey, Jurisdiction, § 594.

This he advances without authority or color of authority. While While citation of authority would not

make it good law if it were bad, like many first impressions, it will not stand the test of reason. It will not go on paper, and this, we suspect, is why it finds no mention in the books.

It is fundamental that a higher court will not control the judicial acts of an inferior court. It will not invade the realm. Its prime function is to review for error. The first consideration, then, must be to determine the character of the act of the inferior court. Is a judgment of dismissal based upon a denial of jurisdiction over a subjectmatter a judicial act in the sense that it is a judgment which ought to be reviewed on appeal?

A dismissal under the mistaken belief that the court has no jurisdiction is in no sense a judicial act; for it rests upon a disclaimer of the judicial function. The court has neither heard nor determined. Neither the law nor the facts are affected in the slightest degree, and, appeals being for the correction of judicial errors, errors of discretion, or of the judicial mind, it follows that one entitled should have resort to some method by which the court can be set in motion. The court has done nothing which is either judicial or discretionary. It has refused to do either. Its judgment is nullus fillius, a void thing, binding no one, a legal nonentity.

"Where an action is dismissed on the sole ground that the court has no jurisdiction of the subject-matter of the suit, this is, of

course, no adjudication of the merits and no bar to another action for the same cause." Black, Judgm. 2d ed. § 713.

In Cowan v. Fulton, 23 Gratt. 579, the court denied its jurisdiction upon the ground that the act relied on to sustain it was unconstitutional. It was held that a writ should issue, the court saying:

"But it is insisted that, conceding the law referred to to be constitutional, still the judgment of the circuit court, dismissing the cause for want of jurisdiction and striking it from the docket, is a final judgment

in the cause; and, the term at which this supposed judgment was rendered having passed by, it is not competent to the appellate court, by mandamus, to compel in effect a rehearing of the cause.

"If the premises were true, the conclusion might perhaps be conceded; for it certainly is not regular nor proper to use the writ of mandamus to review or rehear the judgments of a subordinate court; but the fallacy of the argument consists in the assumption that there was a judgment in the cause; whereas the court positively and unequivocally refused to pass on it at all, either 'to review, reverse, or affirm the judgment,' and merely directed 'that the cause be dismissed and stricken from the docket.' It was a simple refusal to hear and decide the case; and, this court having held that no appeal lies from such refusal, it is exactly the case to which the highly remedial writ of mandamus is most frequently applied, in order to prevent a defect or failure of justice.

"Original jurisdiction to award writs of mandamus upon these principles of the common law has been conferred on this court by the Constitution and laws of the state; and in accordance therewith we say to the judge of the circuit court of Pulaski that he has the constitutional power to hear and finally dispose of the cause referred to, as by an appellate court; and that it is his duty so to do."

It is the rule in the Federal courts. that every party has a right to a judgment of the court, and that the writ will issue in a case where an

inferior court has improperly dismissed a cause under a disclaimer of power to entertain jurisdiction of the subject-matter, and the case will be reinstated with instructions to try and determine. Ex parte Bradstreet, 7 Pet. 647, 8 L. ed. 815. It is also held that a refusal of a court to take jurisdiction, it having jurisdiction, is not a final judgment in the sense which authorizes a writ of error, and the remedy is

properly by way of mandamus. Chicago & A. R. Co. v. Wiswall, 23 Wall. 507, 23 L. ed. 103. This deci sion was afterwards overcome by a statute which gave a right of review by writ of error. A later statute took away both remedies and made the order final. The case nevertheless stands as an authority upon the principle involved. It is a judicial expression as distinguished from the later expressions of the legislative body.

In People ex rel. Robison v. Swift, 59 Mich. 529, 26 N. W. 694, the lower court had quashed certain indictments under the mistaken notion that it had no jurisdiction. It was contended that a writ of error was the proper remedy. Here that appeal is the proper remedy. So that we have the same case, for the office of the two remedies is the same, to reverse, modify, or affirm. The court said: "Judgment on a writ of error in such a case would merely vacate the order to quash, and while, no doubt, the recorder's court would in such case proceed, yet the real purpose of this application is to speed the trial, and a mandamus seems more fitting than a writ of error, where that duty would be inferred rather than expressed."

The dialogue between Lord Ellenborough and counsel reported in Rex v. Justices of Kent, 14 East,

395, 104 Eng. Reprint, 653, is of in


"Lord Ellenborough, Ch. J. .
If the justices had rejected the
application in the exercise of the dis-
cretion vested in them by the legis-

lature, this court would not inter-
fere; but if they had rejected it on
the ground now stated, they had no
power to grant it; the court would
interfere so far as to set the juris-
diction of the magistrates in mo-
tion, by directing them to hear and
determine upon the application.
The court therefore granted a rule
to shew cause, etc.

"Park, Taddy, and Berens now shewed cause against the rule, and first said that the justices in ses

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