State ex rel. L. L. Buchanan & Co. v. Washington Public Service Com'n, 31832

• Decision Date: 29 November 1951
• Docket Number: No. 31832,31832
• Citation: 237 P.2d 1024,39 Wn.2d 706
• Court: Washington Supreme Court
• Parties: STATE ex rel. L. L. BUCHANAN & CO., Inc. v. WASHINGTON PUBLIC SERVICE COMMISSION et al.

Page 706

39 Wn.2d 706

237 P.2d 1024

STATE ex rel. L. L. BUCHANAN & CO., Inc. v. WASHINGTON PUBLIC SERVICE COMMISSION et al.

No. 31832.

Supreme Court of Washington, Department 1.

Nov. 29, 1951.

Smith Troy George R. LaBissoniere, Olympia, for Public Service commission.

Kellogg, Reaugh, Hart & Towne, Seattle, for Washington Bulk Petroleum Carriers Conference.

Dodd & Russell, Seattle, for respondent.

MALLERY, Justice.

This matter comes here on a writ of certiorari. The relators contend that the trial court erred in overruling their motion to dismiss the respondent's cause of action for want of prosecution under Rule 3, Rules of Practice, 34A Wash.2d 69, which reads as follows: '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 to the adverse party.'

The action below was on a writ of review. The respondent, being aggrieved by an order of the Washington public service commission entitled 'Order M. V. No. 52167, Hearing No. 2992,' caused the entire record in that proceeding to be certified to the superior court of Thurston county for review. This was done pursuant to Rem.Rev.Stat. (Sup.) § 10428, the pertinent part of which reads as follows: 'Any complainant or any public service company affected by any findings or order of the department, and deeming such findings or order to be contrary to law, may, within thirty days after the service of the findings or order upon him or it, apply to the superior court of Thurston county for a writ of review, for the purpose of having the reasonableness and lawfulness of such findings or order inquired into and determined. Such writ shall be made returnable not later than thirty days from and after the date of the issuance thereof, unless upon notice to all parties affected further time be allowed by the court, and shall direct the department to certify its record in the case to the court. Such cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the department and certified to by it. * * *'

Three questions are here presented: (1) When was the action at issue so that the year began to run under Rule 3? (2) Does a motion to dismiss under Rule 3 lie after the cause is noted for setting for trial? (3) What is the time within when an application for a writ of certiorari must be filed after entry of the order?

Upon the first question, the record shows that the return day, prescribed in the trial court's writ of review, was June 27, 1949. Such a writ issues as a matter of right. No responsive pleadings are provided for or required by the statute, as heretofore set out. The cause would, therefore, have been ready to set for hearing on and after the return day. Rule 3, however, was tolled by motions to quash, which were not disposed of until September 22, 1949. The year, within which to note the proceeding for hearing, thus began to run at that time and ended on September 22, 1950.

The respondent contends that the rule was tolled by a stipulation, which was filed on January 27, 1950, the pertinent part of which reads:

'(1) That no answer or other responsive pleading shall be demanded of or required by either of the defendants herein in respect of the 'complaint' filed by the relator herein;

'(2) That the allegations contained in said relator's 'complaint' shall be considered and treated as though they were contained in and formed a part of relator's 'Application for Writ of Review'; * * *.'

The stipulation did not support to extend the time for setting the cause for hearing. Indeed, it did no more than agree to what Rem.Rev.Stat. (Sup.) § 10428, itself provided for, that is, that responsive pleadings are not...