Bishop v. Hamlet
| Decision Date | 13 October 1961 |
| Docket Number | No. 35713,35713 |
| Court | Washington Supreme Court |
| Parties | Ed BISHOP, doing business as Federal Discount Company, Respondent, v. Robert HAMLET ad Jane Doe Hamlet, his wife, and Emmett Lewis and Jane Doe Lewis, his wife, doing business as Hamiet Texaco Station, Appellants. |
Jack Steinberg, Seattle, for appellants.
Bennett Hoffman, Seattle, for respondent.
This case comes to us on an agreed statement of facts. It is conclusively established that on March 10, 1959, respondent obtained a judgment for $230.92 against appellat in a justice of the peace court in King County. Appellant appealed to the Superior Court on March 27, 1959. Nothing further was done until May 19, 1960, when appellant moved in the Superior Court for a dismissal of the action for want of prosecution under Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. O. Sometime later, respondent moved that the Superior Court dismiss the appeal from the justice court. Appellant's motion to dismiss the action was denied; respondent's motion to dismiss the appeal was granted. Appellant assigns error to both rulings of the Superior Court.
The first question raised by appellant's assignments of error is the effect of Rule of Pleading, Practice, and Procedure 41.04W upon appeals from justice of the peace courts to the superior courts. The pertinent portion of the rule reads as follows:
Appellant argues that the rule is clear and mandatory; that respondent was the plaintiff in the justice court and retained that status in the superior court; and that, because respondent did not note the action for trial within one year after appellant took it to the superior court, the action should have been dismissed. There is some support for this line of argument in cases from other states. Yost v. Gadd, 1939, 227 Iowa 621, 288 N.W. 667; Western Union Telegraph Co. v. McKee Bros., Tex.Civ.App.1911, 135 S.W. 658. However, we cannot agree with appellant's argument or with the conclusions of the cases above cited. Rule 41.04W, supra, is clearly designed to avoid procrastination by the moving party; i. e., the party responsible for the presence of the case or the claim on the records of the superior court. In Friese v. Adams, 1954, 44 Wash.2d 305, 267 P.2d 107, we observed that the requirement of the rule is that the moving party must note the action for trial or hearing in order to avoid a dismissal. We also have stated, in a case involving an original action in the superior court, that the plaintiff is the 'attacking party and must by prompt action comply with the rule under consideration.' (Emphasis supplied.) State ex rel. Pacific Fruit & Produce Co. v. Superior Court, 1945, 22 Wash.2d 327, 155 P.2d 1005, 1007.
We have said on occasion, as appellant points out, that the obligation of going forward to avoid the operation of the rule always belongs to the plaintiff or cross-complainant (with the recent amendment of the rule, we could add other initiating parties) and not to the defendant. State ex rel. Washington Water Power Co. v. Superior Court, 1952, 41 Wash.2d 484, 250 P.2d 536, and cases cited therein. The correctness of the statement, where the rule applies, cannot be disputed. We do not think the rule applies to appeals from justice-of-the-peace courts to the superior courts.
The moving party, or the attacking party, in an appeal is, of course, the appellant, regardless of his status as plaintiff or defendant in the justice court. The rule is designed to prod the moving party or make him suffer the consequences of his own delay. It would be unreasonable to require the victorious justice court plaintiff who is content with his judgment and who does not desire further relief once again to take the initiative because his less-satisfied adversary has taken the case into the superior court. Rule 41.04W, supra, we are convinced, does not and should not apply to appeals from justice-of-the-peace courts.
(Perhaps it should be pointed out that
'* * * The issue before the justice shall be tried in the superior court without other or new pleadings, unless otherwise directed by the court.' RCW 12.36.050.
This makes inapposite the reasoning of Black for Use of Smulska v. H. Feinberg Furniture Co., 1938, 9 W.W.Harr. 523, 39 Del. 523, 3 A.2d 62, which held that the burden of a statute similar to Rule 41.04W (supra) was on whoever was the plaintiff in the justice court, because new pleadings would have to be filed and, if the plaintiff did nothing, there would be no way for the appellant-defendant to get the ball rolling.)
The trial court did not err in denying appellant's motion for dismissal of the case for want of prosecution.
Appellant's second assignment of error--that the trial court should not have granted respondent's motion to dismiss the appeal--likewise is without merit. The power to dismiss cases for want of diligent prosecution is inherent in the courts; no express authorization is necessary. See Seely v. Gilbert, 1943, 16 Wash.2d 611, 134 P.2d 710; 17 Am.Jur., Dismissal, Discontinuance, and Nonsuit, § 77 1; and 27 C.J.S. Dismissal and Nonsuit § 65(1)b. 2 Appellant offers no arguments, other than those directed to Rule 41.04W, supra, as to why the dismissal was erroneous or an abuse of discretion. No such reasons are apparent from the agreed statement of facts.
The judgments of the trial court are in all respects affirmed.
The majority agree that it is unnecessary and would serve no good purpose to discuss the amount claimed to be in controversy in connection with our constitutional limitation on appellate jurisdiction. Consequently, the majority opinion makes no mention of jurisdiction and the amount allegedly in controversy.
Judge FOSTER disagrees with the majority. He construes the amount in controversy to be insufficient to justify appellate jurisdiction. On the basis of the latter reasoning he, in effect, concurs in the result reached in the majority opinion.
Since amount in controversy equated with jurisdiction is emphasized as the only appropriate ground for affirmance, I believe the following comment is pertinent.
The statement emphasized by Judge FOSTER as being dispositive of this appeal ('for appellate purposes, the original amount in controversy is determined by the averments of the pleadings, not by the prayer') appears in a number of decisions of our court. However, it honors, stresses, and even insists upon technicality in pleading. Such a way of thinking is quite hopefully, on the wane, outmoded by the modern conception that truth and justice must be the objective and the quest of the law rather than emphasis upon sheer form simply for form's sake. The statement heretofore quoted in parenthesis unquestionably has a long history in our state.
The starting place is Doty v. Krutz, 1895, 13 Wash. 169, 43 P. 17, which was an action for damages caused the plaintiffs when the defendant removed from the state certain wheat upon which they had liens totaling less than $200. Damages of $250 were alleged, and judgment in that amount was prayed for. This court held that it lacked jurisdiction:
The next case which should be considered in the progression is Ingham v. Harper & Son, 1912, 71 Wash. 286, 128 P. 675, 676. The action was brought to recover debts in the sum of $192.75, plus interest. The court held that interest on the debt is properly to be included as a part of the original amount in controversy, but only that amount which accrued to the time the action was commenced. The court actually did the necessary arithmetic, but concluded that the principal sum, plus interest to the time the action was commenced, amounted to $199.66. The prayer had been for $205.52. The appeal was dismissed. The court stated:
'It is well established that the amount in controversy, as limiting the right of appeal is determined by the averments of the pleadings, not by the demand for judgment.'
Five cases were cited in support of the controlling rule. They are, with my descriptions, as follows:
2. Incorporated Town of Central City v. Treat, 1897, 101 Iowa 109, 70 N.W. 110. A tax of $168 had been assessed on an estate. Plaintiff town's share of the tax was $25. The board of tax supervisors authorized a rebate because the assessment had been erroneous. The town asked that the entire rebate be set aside. It was held that, although the total amount of the rebate was in excess of the appellate jurisdictional requirement, the town's interest was too small to give jurisdiction. On the averments, in which the town did not claim to represent the other tax beneficiaries, only $25 was involved, the demand for judgment notwithstanding.
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