Day v. State
| Decision Date | 07 April 1966 |
| Docket Number | No. 38264,38264 |
| Citation | 68 Wn.2d 364,413 P.2d 1 |
| Court | Washington Supreme Court |
| Parties | Sherman DAY, Respondent, v. STATE of Washington, John J. O'Connell, Attorney General, and the Washington State Liquor Control Board, Petitioners. |
John J. O'Connell Atty. Gen., Arthur Mickey, Asst. Atty. Gen., Olympia, for petitioners.
Miles & Level, Olympia, Neil J. Hoff, Tacoma, for respondent.
*
The respondent filed a mandamus action alleging wrongful discharge from his employment, and seeking reinstatement and reimbursement of lost earnings. It is here on a writ of certiorari to review the refusal of the trial court to dismiss the action for want of prosecution under Rule of Pleading, Practice and Procedure 41.04W, RCW vol. O.
The facts, as set forth in the affidavits, are as follows: On November 12, 1963, respondent filed a petition for writ of mandamus, and a show cause order, returnable December 9, 1963, was issued. On December 4, 1963, the state served and filed an answer. On December 9, 1963, the show cause hearing was stricken because neither counsel appeared; they mutually consented not to appear.
The affidavit of the attorney for respondent asserts that the delay in prosecuting the action was due to an offer of settlement by the state. This offer was made just prior to trial date, and he advised the assistant attorney general that he would take up the matter with the respondent. He advised that a new date would be set if the offer was unacceptable. Later he advised the assistant attorney general that he could not accept the offer.
The affidavit of the assistant attorney general asserted that on the 19th day of March, 1964, the deposition of respondent was taken by the petitioners. That an offer of settlement was made to the respondent at about this time but was rejected. The date of the offer and rejection, it would appear from letters and memorandum in the file, was on or shortly after the 7th day of April, 1964.
At the hearing before the trial court on the motion to dismiss for want of prosecution, the court stated it would seem to the court that the affidavit of the assistant attorney general implied a stipulation concerning a proposed settlement which occurred about the date of April 7, 1964. It was rejected at that time.
On March 19, 1965, respondent served and filed note of issue, requesting the case be placed on the assignment docket on March 29, 1965. The state then moved to dismiss for want of prosecution under Rule 41.04W. Thereafter, the court head and denied the state's motion to dismiss.
Rule of Pleading, Practice and Procedure 41.04W, RCW vol. O, provides:
(a) Dismissal on Motion of Parties. Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff, counterclaimant, cross-claimant, or third-party plaintiff neglects 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 to the adverse party.
Under this rule, dismissal is mandatory; judicial discretion is not permitted. Simpson v. Glacier Land Co., 63 Wash.2d 748, 388 P.2d 947 (1964). Accord, Davis v. Smith, 60 Wash.2d 720, 375 P.2d 397 (1962). The action will be dismissed where
(1) an issue of fact or law has been joined; (2) the plaintiff or the other parties seeking relief has failed to note the action for trial or hearing within one year thereafter; and (3) the moving party has not caused the failure to bring the matter on for trial or hearing. Simpson v. Glacier Land Co., ...
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