State ex rel. Dawson v. Superior Court of Kittitas County

• Decision Date: 20 January 1943
• Docket Number: 28942.
• Parties: STATE ex rel. DAWSON v. SUPERIOR COURT OF KITTITAS COUNTY et al.
• Court: Washington Supreme Court

133 P.2d 285

16 Wn.2d 300

STATE ex rel. DAWSON v. SUPERIOR COURT OF KITTITAS COUNTY et al.

No. 28942.

Supreme Court of Washington

January 20, 1943

Department 2.

Original action by the State, on the relation of Ada May Dawson against the Superior Court of Kittitas County and another for a writ of mandamus directed to respondent directing dismissal of an action pending in respondent's court.

Order of superior court on review denying motion to dismiss reversed.

F. L Morgan, of Hoquiam, for petitioner.

E. K Brown, of Ellensburg, for respondent.

GRADY Justice.

This is an original proceeding brought in this court upon petition of Ada May Dawson, hereinafter referred to as relator, praying that this court issue a writ of mandamus directed to the superior court of Washington for Kittitas county, Arthur McGuire, Judge, directing that the court dismiss the action pending in that court, entitled 'Vern Dawson, plaintiff, v. Ada May Dawson, defendant.' An alternative writ of mandamus was issued, to which the respondent has made return in the form of a verified answer.

A question has been raised as to whether mandamus or certiorari is the proper remedy. We have concluded that, as the answer of the respondent, which has not been controverted, sets forth all of the facts necessary to a decision of the questions raised to treat this as a certiorari proceeding under the rule adopted by this court in State ex rel. Crockett v. Sutton, 159 Wash. 307, 293 P. 469.

The record shows that, on August 4, 1939, Vern Dawson commenced an action against the relator, his wife, to obtain an interlocutory order of divorce from her, and asked for the custody of their three minor children. The relator was served with summons and complaint in Grays Harbor county, where she was then residing. The relator made a special appearance and asked for an abatement of the action upon the ground that another action for divorce, brought by her against her husband, was pending in Grays Harbor county. This motion was never brought on for hearing and no order was entered thereon.

On October 10, 1939, the relator applied to the superior court of Washington for Kittitas county for, and there was entered, an order by the court requiring the plaintiff in that action to pay her $10 a month as support money; $50, suit money; and $50, temporary attorney's fees. The order also provided that further proceedings in the action should be stayed until these payments were made. The plaintiff in that action has not complied with the order of the court, but has always claimed, in subsequent proceedings had in the action, that he was financially unable to make the payments.

On January 4, 1940, the relator filed a motion to dismiss the action for failure to prosecute the same; also, because of the pendency of the action in Grays Harbor county, and because the plaintiff had not complied with the order of the court requiring the payment of temporary alimony and suit money. Upon the hearing of this motion, it was denied by the court, but no formal order was entered.

On June 25, 1940, the relator filed a motion to dismiss the action for want of prosecution, but this motion was never heard by the court. On April 15, 1941, the relator filed another motion to dismiss the action for want of prosecution and for the further reason that the plaintiff had not complied with the order of the court as to temporary alimony and suit money. Upon a hearing of the motion, at which the plaintiff claimed inability to comply with the order of the court because of his physical and financial condition, an order was made and entered by the court April 21, 1941, denying the motion to dismiss.

On May 5, 1941, the relator filed a brief in support of the motion which had been denied, and, on May 17, 1941, the court filed a memorandum decision justifying its action in denying the motion on the ground that the order theretofore made staying proceedings in the action prevented a trial thereof. On March 21, 1942, the relator filed a motion for dismissal of the action upon the ground that more than one year had elapsed since its commencement, and that the plaintiff had made no effort to bring the case to trial. This motion also was never brought on for hearing Before the court. On October 27, 1942, the relator again filed a motion to dismiss the action, basing it upon rule III of the Rules of Pleading, Procedure and Practice, 193 Wash. 40-a. A hearing was had upon this motion, which motion was resisted by the plaintiff.

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