In re Ellern
| Decision Date | 26 December 1947 |
| Docket Number | 30175. |
| Citation | 29 Wn.2d 527,188 P.2d 146 |
| Parties | In re ELLERN. v. SUPERIOR COURT OF SPOKANE COUNTY. ELLERN |
| Court | Washington Supreme Court |
Department 2
Petition by William C. Ellern against the Superior Court of Spokane County, Wash., to vacate and set aside a judgment of the court finding the petitioner insane and committing him to an institution. From a judgment dismissing the petition petitioner appeals.
Judgment affirmed.
Appeal from Superior Court, Spokane County; Ralph E. Foley, Judge.
S Edelstein, of Spokane, for appellant.
Leslie M. Carroll and Clarence P. Smith, both of Spokane, for respondent.
This is a proceeding by petition to vacate and set aside a judgment of the superior court of Spokane county dated March 20, 1944 finding the petitioner insane and committing him to an institution. A demurrer by the prosecuting attorney, on the ground that the petition did not state facts sufficient to warrant the relief asked for, was sustained and the petition dismissed. An appeal to this court by the petitioner resulted in a reversal, and on August 6, 1945, the case was remanded to the superior court with instructions to enter an order overruling the demurrer to the petition and 'for further proceedings, in accordance herewith.' In re Ellern, 23 Wash.2d 219, 160 P.2d 639. The remittitur from the supreme court was filed in the office of the clerk of the superior court on August 7, 1945. Pursuant to the mandate of this court, an order overruling the demurrer was entered by the superior court on November 17 1945.
Thereafter, nothing was done until November 15, 1946, when the petitioner served on the prosecuting attorney and filed in the clerk's office a note of issue of fact, requesting the court to have the matter set down for trial; and it was given January 6, 1947, as a trial date.
On November 15, 1946, the prosecuting attorney prepared and filed a motion for an order dismissing the petition under Rule of Practice 3, 18 Wash.2d 32-a, on the ground that the petitioner '* * * has failed to note the above entitled action for trial or hearing within one year after an issue of fact or law has been joined * * *'; which motion was served on appellant's attorney on the following day.
This motion was granted and the petition to vacate and set aside the judgment and commitment of March 20, 1944, was dismissed. From that judgment this appeal followed.
The question for determination is whether issue of fact was joined when the remittitur was filed, or when the formal order overruling the demurrer was signed. If the former, the trial court was correct in entering its order of dismissal; if the latter, the petitioner noted the action for trial within a year thereafter and the proceeding was not subject to dismissal under rule No. 3.
We are of the opinion that the trial court was correct and that issue was joined when the remittitur was filed on August 7, 1945. The matter could have been heard at any time subsequent to that date. No answer is required to raise an issue of fact on a petition to vacate a judgment Rem.Rev.Stat. § 468. The action of the trial court in making and entering an order overruling the demurrer was purely ministerial. The trial court could not delay or defeat the effect of the judgment of this court by failure to enter the formal order as directed. The judgments and decrees of the supreme court are final and conclusive upon all the parties...
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