Craig v. Clearwater Concentrating Co., Inc.

• Decision Date: 14 September 1944
• Docket Number: 29318.
• Citation: 21 Wn.2d 530,151 P.2d 828
• Parties: CRAIG v. CLEARWATER CONCENTRATING CO., Inc., et al.
• Court: Washington Supreme Court

151 P.2d 828

21 Wn.2d 530

CRAIG v. CLEARWATER CONCENTRATING CO., Inc., et al.

No. 29318.

Supreme Court of Washington

September 14, 1944

Department 2.

Action by Robert N. Craig against Clearwater Concentrating Company incorporated, wherein Robert Hage was named as an additional defendant. From an order dismissing the action as to original defendant, the plaintiff appeals.

Affirmed.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, judge.

G. D Eveland and Clarence J. Coleman, both of Everett, for appellant.

Hulbert Helsell & Paul and Hulbert S. Murray, all of Seattle, for respondents.

ROBINSON Justice.

This is an appeal from an order dismissing a plaintiff's action pursuant to Rule 3 of Rules of Pleading, Procedure, and Practice. The rule has remained unchanged since its promulgation in 1938. We quote from the latest compilation of the rules in 18 Wash.2d where it appears on page 32-a, supplemented by a comprehensive list of authorities illustrating its application: 'Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff or cross-complainant shall neglect to note the action for trial or hearing within one year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion to dismiss shall come on for hearing only after notice the adverse party.'

It appears from the record that, in December, 1938, Mr. Gordon D. Eveland, an attorney of Everett, Washington, began an action for Robert N. Craig, the appellant here, against Clearwater Concentrating Company, Inc., hereinafter sometimes referred to as Clearwater Co. On May 29, 1939, Mr. Eveland filed a summons and supplemental complaint, naming Robert Hage as an additional defendant. This must have been served on the Clearwater Co. at some prior date; for, service of its answer, captioned 'Robert N. Craig, Plaintiff, v. Clearwater Concentrating Company, Inc., Defendant, Robert Hage, Additional Defendant,' was acknowledged by Mr. Eveland on May 12, 1939.

Nothing further seems to have occurred in the matter until January 18, 1941, when Mr. Eveland filed the first complaint, that is, the one in which the Clearwater Co. was made the sole defendant. At the same time, he filed a demand for jury trial and a note for setting. The court's minute entry of January 20, 1941, relevant to the cause, is as follows: 'Defendant appears and objected to setting at this time. Setting stricken by court not duly and properly noted: necessary to re-note.'

On April 24, 1941, Mr. Eveland served notice that the case would be brought on for setting April 28. This notice is captioned: 'Robert N. Craig, Plaintiff, v. Clearwater Concentrating Company, Inc.,' and is addressed to Hulbert, Helsell & Bettens, 'Attorneys for Defendant.'

On April 28, 1941, Robert Hage made his first appearance in the case by filing the following motion: 'Comes now Robert Hage, additional defendant above named, by and through Messrs. Hulbert, Helsell & Bettens, his attorneys, and moves the Court for an order herein staying all further proceedings herein during the period of military service of said additional defendant and until sixty (60) days thereafter.'

The motion was supported by an affidavit averring that Hage was then in the military service, stationed at Fort Douglas, Utah, and unable to attend a trial. The minute entry of April 28, 1941, indicates the court's disposal of the two matters Before it, as follows: 'Stayed as to Bob Hague. Setting passed one week.'

Two days after, on April 30, 1941, the court entered its formal order which, omitting the introductory recital, reads as follows:

'It appearing to the Court that said Robert Hage is now in the military service of the United States and that his defense to the above entitled action is materially affected by reason of his military service; now, therefore,

'It is hereby ordered that the above entitled action be and the same is hereby stayed as to the defendant, Robert Hage, until the further order of the Court herein.

'Done in Open Court this 30 day of April, 1941.

Charles R. Denney, Judge'

The minute entry of May 5, 1941, is as follows: 'No one appearing setting passed one week.'

The minute entry of May 12, 1941, is as follows: 'Stricken from setting calendar no one appearing and having been on calendar three times.'

It is admitted that no further notice of setting was ever given.

After the passage of nearly two years, on April 19, 1943, defendant Clearwater Co. moved to dismiss the action as to it, without prejudice, on the ground that the plaintiff had failed to prosecute it within one year after issue of fact was joined, as provided by Rule 3. With the motion, it filed its answer, which had been served on plaintiff's attorney, Mr. Eveland, in May, 1939, and an affidavit stating that the case was stayed as to Hage only, and shortly after stricken from the trial calendar, and that the plaintiff had not noted it since that date.

Mr. Eveland filed an affidavit in opposition, in which he set up that: 'April 30, 1941, the above entitled court, Judge Denney presiding, entered an order staying all proceedings until further order of the court in accordance with the motion of such additional defendant; that since then the case has remained in states quo; that said additional defendant is still in the military service of the United States and the situation has in no manner changed and the situation parties to the cause; that plaintiff in the meantime has been in lock where he could not move to have the cause set down for trial, especially in view of the Federal law inhibiting the prosecution of a cause against one in its military service during the present war, or for sixty days thereafter; that said cause, when tried, should be prosecuted against said additional defendant as well as against defendant for the reason that such additional defendant was the driver of the car at the time of plaintiff's injury and through his negligence was the cause of such injury; that plaintiff would like to prosecute said cause and since his demand for a jury trial has been ready therefor and would have done so had he not been stopped by the order of this court entered pursuant to Federal law staying further proceedings.'

It is clear that Mr. Eveland was laboring under a mistake of both fact and law when he made his affidavit; for, Judge Denney's order of April 30, which we have quoted above expressly stayed the action as to Hage only, and the staying of an action as to ...