Peterson v. Parker

• Decision Date: 27 March 1929
• Docket Number: 21684.
• Citation: 275 P. 729,151 Wash. 392
• Parties: PETERSON v. PARKER.
• Court: Washington Supreme Court

275 P. 729

151 Wash. 392

PETERSON v. PARKER.

No. 21684.

Supreme Court of Washington

March 27, 1929

Department 2.

Appeal from Superior Court, King County; T. J. Ronald, Judge.

Action by Gilman Peterson against A. C. Parker, doing business as the Security Investment Company. From a judgment dismissing the action for want of prosecution, plaintiff appeals. Cause remanded, with directions to modify judgment.

George F. Hannan and Robert G. Cauthorn, both of Seattle, for appellant.

Wettrick & Wettrick, of Seattle, for respondent.

MAIN, J.

This is an appeal from a judgment dismissing the action for want of prosecution. The case was at issue, and was noted to be set for trial for June 6, 1922, on which date it was stricken from the calendar. Nothing further was done until March 17 1928, when the appellant served and filed a notice that the cause would be placed on the trial docket. Following this and on April 2, 1928, the respondent served and filed a motion to dismiss. Affidavits in support of and against the motion were filed. The motion was heard April 11, 1928, and as shown by the minute entry, the court ruled that it should be granted. No formal order or judgment was entered. July 10 1928, the appellant filed a motion to have the cause reinstated, which was supported by affidavits. August 23 1928, the court heard the motion, overruled the same, and entered a judgment dismissing the action 'with prejudice.'

The appellant seeks to excuse the delay in bringing the action to trial because, for a period of about two years after it was first instituted in 1922, desultory negotiations for settlement were pending. In addition to this, the appellant says that the respondent was continuously absent from the state after the action was begun, and that he did not discover that respondent had property out of which a judgment should be collected until shortly prior to the time that it was noted for the trial docket in 1928. The negotiations for settlement terminated approximately six years before any effort was made to bring the case on for trial. The absence of the respondent from the state, and the lack of knowledge on the part of the appellant that he had property out of which a judgment could be collected, in no manner interfered with prosecuting the cause to judgment. The court, in dismissing the action, under the holdings of this court in similar cases, did not abuse its discretion. Langford v. Murphey, 30 Wash. 499, 70 P. 1112; Rehmke v. Fogarty, 57 Wash. 412, 107 P. 184; Loving v. Maltbie, 64 Wash. 336, 116 P. 1086; Greenwood v. Puget Mill Co., 111 Wash. 464, 191 P. 393.

The next question relates to the form of the judgment. Whether the case should have been dismissed 'with prejudice' depends upon whether the judgment was one upon the merits. Section 408, Rem. Comp. Stat., in part provides:

'An action may be dismissed, or a judgment of nonsuit entered in the following cases: * * *

'4. By the court, when, upon the trial and before the final submission of [the] case, the plaintiff abandons if. * * *'

Section 409 provides that:

'In every case other than those mentioned in the last section, the judgment shall be rendered on the merits.'

From these statutes it would appear that, if the action is abandoned by the plaintiff upon the trial and before the final submission, the judgment is not one upon the merits. The theory upon which an action may be dismissed which has been permitted to lie...