.
Subdivision (b).
In a quo warranto proceeding, the trial court did not err in summarily deciding the controversy as a matter of law, where the only issue was whether a public official's conviction of the criminal offense of knowing, willful neglect of duty constituted a violation of his official oath within the, 420STATE EX REL. Former Rule 59(c) set a 10-day period after being served with a motion for new trial to file opposing affidavits. 429. v. Redman (1915), 183 Ind. For the reasons indicated above, we adhere to the trial court's decision. '/_layouts/15/itemexpiration.aspx'
102, Ann.Cas.1912D, 588 (1912) (sustaining and recommending the practice and citing Federal cases and cases in accord from about sixteen States and contra from three States). 428STATE EX REL. Subdivision (e). Washington State Sportsmen's Council v. Coe, 49 Wn. 421. One such qualification is that a public official convicted of "any offense involving a violation of his official oath" shall not hold a position of public trust. In considering whether a given ground has or has not been advanced in the motion made by the party, it should be borne in mind that the particularity called for in stating the grounds for a new trial motion is the same as that required for all motions by Rule 7(b)(1). Rather, they consistently articulate the sound and reasonably necessary public policy inherent in RCW 42.12.010 and RCW 9.92.120. The title of Rule 59 has been expanded to indicate the inclusion of this subdivision. 35956. '/_layouts/15/docsetsend.aspx'
Relator is therefore in no position to complain now about the date fixed for answer. 1962); cf. . It was not denied, nor could it have been, that a criminal conviction of relator had occurred in the superior court. . [59 Wn. On January 12, 1961, the trial court entered judgment and sentence. In these cases, as stated by Judge Foster, this court did not consider any conflict between the statutes (RCW 42.12.010 and RCW 9.92.120) and the constitutional guarantee of a. right of appeal. 
59.09[2] (2d ed. However, an overwhelming majority of cases from other jurisdictions have taken the position that the term "conviction" appearing in constitutional or statutory provisions similar to RCW 42.12.010 and RCW 9.92.120 means simply conviction in a trial court. 5, 3,3 of the state constitution. Furthermore, it simply would be stretching the cloth to fit the pattern, and much too much, to engraft upon this provision of the constitution a special constitutional protection and right, applicable only to a judicially synthesized classification of criminal defendants; namely, those few criminal offenders who by accident or fortuitous circumstance occupy public office. The test of whether or not an officer performs his duty "to the best of my ability" relates to the method used, not to his degree of success. It was not the relator's privilege, under his oath of office, to deliberately choose surveillance of and warnings to houses of prostitution as the sole method of performing his duty, because the law does not sanction it as a performance `according to law." This tension between the two rules may have been inadvertent. It also should be noted that under Rule 6(a) Saturdays, Sundays, and legal holidays are excluded in measuring the 10-day period, but that Bankruptcy Rule 9006(a) excludes intermediate Saturdays, Sundays, and legal holidays only in computing periods less than 8 days. Guthrie v. Chapman, supra.
. Rules Digest, 52 a 1.
& Cas. Relator Twitchell has not yet perfected his appeal in the criminal case in which he stands convicted in the Superior Court for Snohomish County. Quo warranto to vacate the office of a public official. As to the effect of a motion under subdivision (e) upon the running of appeal time, see amended Rule 73(a) and Note. denied 358 U. S. 828, 3 L. Ed. Washington State Court Ruleson the Washington Courts website. 344. (Italics ours.) 253 (E.D.La. declaring that a public office is vacated if the occupant thereof be convicted of specified crimes. The conviction in the superior court was res judicata as to factual issues raised in relator's defense in the quo warranto proceeding. There can be no proper defense predicated upon ability to act where there is an absence of any intention or attempt to act by way of a lawful performance of duty. ], THE STATE OF WASHINGTON, on the Relation of Arnold R. Zempel, Plaintiff, v. ROBERT TWITCHELL, Defendant and Relator, THE SUPERIOR COURT FOR SNOHOMISH COUNTY, William J. Wilkins, Judge, Respondent.*. (2d). These were questions of law, and the judge was not in error in proceeding to enter the judgment of ouster if in this connection his conclusions of law were correct. Rule 6(b) governs. Jan. 1962] STATE EX REL. A motion for a new trial must be filed no later than 28 days after the entry of judgment. [6] OFFICERS - APPOINTMENT AND QUALIFICATION - OATH - CONSTRUCTION. 1, 22 (as amended) of the state constitution. State ex rel. The trial judge stated that he would decide all questions presented and would make a final determination as to the ouster proceeding on February 15, 1961, and the parties were directed to present any further pleadings or motions by that time. Rule 6(b) continues to prohibit expansion of the 28-day period. [1] CIVIL PROCEDURE - PLEADINGS AND MOTIONS - TIME FOR FILING - DISCRETION OF COURT. The prayer of the information in quo warranto sought a judicial determination that under the statutes of Washington the relator's status or position as sheriff was forfeited and that the office of sheriff was thereby legally vacated. Notes of Advisory Committee on Rules1946 Amendment. ", Jan. 1962] STATE EX REL. July 1, 1966; Apr. . There is language to the same effect in State ex rel. (1) It is implicit in Rule 12(a) that differing circumstances result in different time limits for preparing responsive pleadings. The reason for allowing some discretion in these circumstances is to guard against motions brought merely for dilatory purposes. Keenan v. McGuane (1958), 13 Ill. (2d) 520, 150 N. E. (2d) 168, 71 A. L. R. (2d) 580; cert. Since relator filed his answer on the date fixed by the court, it is obvious that he had sufficient time to prepare this pleading. On February 15, written orders denying relator's motion to dismiss and motion to strike were signed and entered by the trial court, and an answer to the information was, Jan. 1962] STATE EX REL. Co., 36 F.R.D. which requires that the notice thereof be served ten days before hearing. For partial new trials which are permissible under Subdivision (a), see Gasoline Products Co., Inc., v. Champlin Refining Co., 283 U.S. 494 (1931); Schuerholz v. Roach, 58 F.(2d) 32 (C.C.A.4th, 1932); Simmons v. Fish, 210 Mass. Blake v. Levi (1930), 109 W. Va. 277, 153 S. E. 587; Becker v. Green Cy. . We hold that the relator's status or office as Snohomish County Sheriff was vacated upon the relator's conviction of willful, knowing negLect of duty, and that there was no dispute of material fact requiring a trial in the quo warranto proceeding. (As amended Dec. 27, 1946, eff. (2d). In all fairness, it should be acknowledged that courts in a few other jurisdictions have yielded to sentimentality or empathy for public officials and, accordingly, have construed comparable statutory or constitutional language to reach the result advocated by relator. To do otherwise is to render Rule 12 (c), pertaining to judgments on the pleadings, totally useless. Guthrie v. Chapman (1936), 187 Wash. 327, 60 P. (2d) 245, the court carefully considered and construed the statutes with which we are presently concerned. The judgment of ouster constituted a judicial determination of the facts made by the record of relator's conviction and also a legal declaration of his status with respect to the office formerly held by him. The function of a summary judgment proceeding, or a judgment on the pleadings is to determine whether or not a genuine issue of fact exists, not to determine issues of fact. Dec. 1, 2009. 70392, William J. Wilkins, J., entered February 15, 1961. . (2d). (2) Further Action After a Nonjury Trial. (Italics ours. Relator's surveillance of houses of prostitution and warnings to them, not being a lawful method of law enforcement procedure, did not amount to a performance of duty at all. denied, 311 U.S. 667 (1940); but see Steinberg v. Indemnity Ins. New Trial; Altering or Amending a Judgment. Neither a proceeding in summary judgment nor a judgment on the pleadings can be regarded as a trial, since issues of fact are not tried. 1523, 59 S. Ct. 1047; Smith v. Noeppel (1953), 204 Misc. The phrase "to the best of my ability", which was contained in the oath of office of a county sheriff following the promise to perform and discharge the duties of the office, was not a qualification of the standards expected of the sheriff, but was in the nature of a promise to devote unceasing effort toward performing and discharging those duties imposed by law and which the affiant, by virtue of the preceding portions of the oath, solemnly swore to uphold. In due course his appeal will come before this court in the same manner as thousands of other criminal appeals. (concurring) - In our review of the instant judgment on the pleadings, we need look no further than the sufficiency of the answer to allege a defense. The facts and events leading to review here by certiorari are as follows: On January 22, 1960, a Snohomish County Grand Jury indicted Robert Twitchell, the relator herein. Relator then requested a stay of the entry of judgment to allow sufficient time to permit another application to the Supreme Court for a writ of prohibition. We must do the same here. New Trial on the Court's Initiative or for Reasons Not in the Motion. . The court, acting on the prosecuting attorney's motion "that the relief prayed for in the information be granted", determined that the pleadings presented only an issue of law, and proceeded to enter a judgment of ouster, including also findings of fact and conclusions of law. . (2d) 755, 264 P. (2d) 246, 42 A. L. R. 1379. Any contention that the appeal stays the ouster proceedings is forecLosed by, our decision in State ex rel. Stat., provides that the appeal shall supersede the forfeiture unless the court shall deem it in the public interest to suspend the convicted officer from his office pending appeal. The subdivision deals only with alteration or amendment of the original judgment in a case and does not relate to a judgment upon motion as provided in Rule 50(b).
214. New York has no constitutional provision guaranteeing a right of appeal from a conviction of a criminal offense. It is unlikely that this criminal appeal can be heard and determined until the May term, or perhaps the September term, as a statement of facts and opening briefs are not yet filed by appellant Twitchell. II, 24) and Utah (Art. Mar. Convicted criminal offenders may even lose their jobs - and probably will, if their employer chooses or feels forced by circumstances to discharge them. See Byers v. Smith (1935), 4 Cal. The only change, other than stylistic, intended by this revision is to add explicit time limits for filing motions for a new trial, motions to alter or amend a judgment, and affidavits opposing a new trial motion. If this were an open question, a very strong argument could be made that the statutes involved conflict with Art. Giles v. Burke (1941), 101 Utah 48, 117 P. (2d) 454; State ex rel. ." ZEMPEL v. TWITCHELL. (2d) 209, 47 P. (2d) 705; People v. Enlow (1957), 135 Colo. 249, 310 P. (2d) 539; Pineville v. Collett (1943), 294 Ky. 853, 172 S. W. (2d) 640. Additional time to prepare a responsive pleading was not sought at the time, and there is nothing to indicate that the answer would have been any different had a few more days been allowed. The second sentence added by amendment to Rule 59(d) confirms the court's power in the latter situation, with provision that the parties be afforded a hearing before the power is exercised. . I concur in the result of the majority opinion. +'?Category=Auditing&backtype=item&ID={ItemId}&List={ListId}'); return false;} if(pageid == 'config') {STSNavigate(unescape(decodeURI('{SiteUrl}'))+ without making a complaint and without making an arrest, permitted the keeping of a house of prostitution and the practice of prostitution, each of which constitutes a breach of the peace and a public offense." Link to theWashington State Court: General Rules on the Washington Courts website.