49 Wn.2d 677, ROBERT L. EDWARDS et al., Appellants, v. A. A. TREMPER, as Treasurer of King County, Respondent

[No. 33576. En Banc.      Supreme Court      January 22, 1957.]

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

[1] MANDAMUS - NATURE AND GROUNDS - EXISTENCE AND ADEQUACY OF REMEDY AT LAW. Mandamus is an extraordinary proceeding, and it is permitted only when the complaint alleges facts sufficient to establish no plain, speedy, or adequate remedy at law; and a complaint in a mandamus action is fatally defective where it does not allege such facts.

[2] ELECTION OF REMEDIES - MISTAKES AS TO REMEDY - EFFECT. By erroneously seeking the extraordinary remedy of mandamus, the plaintiff did not make an election of remedies which would bar a subsequent action on the merits seeking a proper remedy.

Appeal from a judgment of the superior court for King county, No. 483792, Turner, J., entered September 20, 1955, upon sustaining a demurrer to the complaint, dismissing an action in mandamus. Affirmed.

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


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

[1] See 4 A. L. R. 632; 34 Am. Jur. 835.

 678    EDWARDS v. TREMPER.     [49 Wn. (2d)

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.