Opinion of the Court-HOYT, J. [2 Wash. Original Application for Certiorari. S. M. Bruce, for petitioner. The opinion of the court was delivered by HOYT, J. — This is a proceeding by the petitioner for a writ of certiorari to the superior court of the county of Whatcom, by which the petitioner seeks to bring into this court that portion of the record in a case therein pending which relates to the motion for a new trial filed therein, and the action of the court in granting the same, and seeks upon such record to have the action of such court vacated and set aside. It appears from the petition that, in an action pending in said court against D. P. Mason, D. W. Mason and H. K. Stewart, default and judgment were duly entered against said D. P. Mason, and that some months afterwards a trial was had as to the cause of action alleged, as against the other two defendants, upon issues made by their several answers thereto. A verdict for the plaintiff was rendered, and a motion for a new trial filed. All of said defendants in form joined in said motion. The court denied the same as to said defendant D. P. Mason, and granted it as to the other two defendants, and for that reason it is alleged by the petitioner that the action of said court was erroneous, and that, as it has no other adequate remedy, it is entitled to the writ of certiorari. Its contention in this regard is, that the motion being joined in by all three defendants it must be sustained as to all, or denied as to all, and that, as the judgment against said D. P. Mason had been rendered months before, he could have no relief by said motion, and therefore no relief could be given to his co-defendants joined with him in said motion. That such is the general doctrine is undoubtedly correct, and if said D. P. Mason was so far a party to the verdict sought to be set aside by such motion for a new trial as to be at all recognized in connection therewith, the contention of petitioner as to the action of the court upon such motion would be correct; but we think that D. P. Mason was, so far as the trial had in said cause and the verdict rendered was concerned, an entire stranger to the proceeding; and for that reason his joining in the motion had no effect thereon, and the mention of his name therein should have been and probably was treated as a nullity. This being so, the motion was in substance made only by two of said defendants, and the contention of petitioner as to the error of the court in its action thereon falls to the ground. It follows that it is not entitled to the writ prayed for. It is an open question in this state as to whether or not this court has power, under the constitution, unaided by legislation, to grant a writ of certiorari to the superior courts of the state; and, if it has, whether such writ will be granted until after final judgment in the court below. The view we have taken, however, as to the effect of the motion set out in the petition herein, makes it unnecessary for us to decide these questions here. The writ will be denied. ANDERS, C. J., and STILES, SCOTT, and DUNBAR, JJ., concur. [No. 133. Decided June 15, 1891.] SANDER-BOMAN REAL ESTATE COMPANY V. ESTATE OF SARAH B. YESLER, Deceased, J. D. LOWMAN, Administrator Thereof, AND LUCINDA HOCHSTETTLER, Petitioner. SPECIFIC PERFORMANCE- DECEDENT'S CONTRACT TO CONVEY PRACTICE- -NOTICE-JUDGMENT-APPEALS. An order vacating a decree on petition of a party who had been served with process in the proceeding by publication only, and allowing her to appear and defend the action, is not an appealable order under Laws 1889-90, p. 336, amending 1 of the act passed Opinion of the Court-STILES, J. [2 Wash. March 22, 1890, relating to removal of causes from the superior to the supreme court. In a proceeding, under chapter 52, Code 1881, to enforce the specific performance of a contract to convey real estate made by a decedent, a notice by publication to the administrator of the estate, "and all persons having an interest in said estate," is sufficient without being directed to "all persons interested as creditors, heirs, devisees or personal representatives" thereof. In such a proceeding, where the administrator was not served with copies of the petition and notice, and there was no adjournment of the hearing, the court was without jurisdiction at a later date to entertain the petition, or to re-open the case to allow a party served by publication only to appear and defend. A decree in such a proceeding ordering the administrator to execute a deed forthwith, and, in default thereof within ten days, decreeing that a commissioner shall execute same, is erroneous, as, under 2 630, Code 1881, a conveyance is not to be made until after the time for an appeal shall have elapsed. Appeal from Superior Court, King County. Action by the Sander-Boman Real Estate Company against the estate of Sarah B. Yesler, and others, for the specific performance of a contract by decedent to convey real estate. There was a decree directing the conveyance. Subsequently the decree was set aside on petition of Lucinda Hochstettler, one of the heirs of Sarah B. Yesler, and permission granted her to appear and defend. Plaintiff appeals from this order. Junius Rochester, for appellant. The opinion of the court was delivered by STILES, J.-The appellant in this case filed its petition in the district court of King county in 1889, under chapter 52 of the code, claiming that its assignor had received from Sarah B. Yesler, deceased, a contract for the conveyance of certain lands in the city of Seattle. The petition was filed on the 2d day of May, and on the same day June, 1891.] Opinion of the Court-STILES, J. the judge of the district court made an order setting June 24th as the time for hearing, and directing notice of the pendency of the proceeding to be published in a weekly newspaper. No copy of the petition or notice appears to have been served upon the administrator, but upon the 31st day of May a summons was issued by the clerk of the court in the ordinary form of summons in actions at law or in equity, a copy of which was served upon the administrator by the sheriff of King county on the 3d day of June. On the 24th day of June the administrator appeared by his attorney, and filed his demurrer to the petition, on the ground that it did not state facts sufficient to constitute a cause of action. No further proceedings were taken in the matter at that time, nor does there appear to have been any adjournment of the hearing on the petition. On the 25th day of January, 1890, however, the superior court overruled the demurrer, and allowed the respondent five days in which to answer; and on February 14th the administrator by his counsel consented that his default might be entered, and that judgment be taken in accordance with the prayer of the petition. On the 3d day of March thereafter proof of publication of the notice ordered to be published was filed, the substance of which is as follows: "Notice. In the district court of the third judicial district holding terms at Seattle, in and for King county. [Title of cause.] To J. D. Lowman, administrator of the estate of Sarah B. Yesler, deceased, and all parties having an interest in said estate: You, and each of you, will please take notice that whereas, the Sander-Boman Real Estate Company, petitioner and plaintiff herein, heretofore filed and presented its certain petition, praying, among other things, for an order of the court for the conveyance to it of the following described real estate in King county, to wit: [Description.] Now, therefore, you are notified, pursuant to an order of court heretofore entered herein on the 2d day of May, 1889, that Monday, the 24th day of June, 1889, being a day of the regular term of said district Opinion of the Court-STILES, J. [2 Wash. court, at 11 o'clock A. M., at the court-room in the courthouse in the city of Seattle, said petition will be heard when and where all parties interested as creditors, devisees, or personal representatives of Sarah B. Yesler may appear and show cause, if any they have or can show, why the prayer of said petitioner shall not be granted. [Attested by the clerk.]" On the same day a decree was entered directing the administrator to forth with execute a deed to the petitioner for the real estate described, and it was further ordered that, if the administrator should fail to execute such deed within ten days after the date of the judgment, a commissioner, who was named, should execute such deed in his place. Subsequently, and on the 26th day of August, 1890, Lucinda Hochstettler, the appellee in this court, who was one of the heirs at law of the deceased, Mrs. Yesler, filed in the superior court of King county a petition showing that she had not been served with process in said proceeding in any other way than by publication; and upon a proposed answer, filed at the same time, asked to be allowed to appear in said action and defend the same upon terms. The court thereupon granted the petition, set aside the judgment and allowed the petitioner to appear and defend the action. This appeal was taken from the order last mentioned, and although the point was not raised by the appellee on the hearing in this court, the question whether or not this was an order such as was appealable goes directly to our jurisdiction, and we must notice it as a preliminary to the further consideration of the case. The appellant seems to have proceeded upon the assumption that such an appeal was justified by § 1 of the act of 1890 (page 333), wherein it is provided that an appeal can be taken to this court "from a final order made in special proceedings, affecting a substantial right therein, or made on a summary application in an action after judgment, or from an order granting a new trial." Probably, |