State ex rel. Lyle v. Superior Court for Pierce County, 27962.

• Decision Date: 02 May 1940
• Docket Number: 27962.
• Citation: 102 P.2d 246,3 Wn.2d 702
• Parties: STATE ex rel. LYLE v. SUPERIOR COURT FOR PIERCE COUNTY et al.
• Court: Washington Supreme Court

102 P.2d 246

3 Wn.2d 702

STATE ex rel. LYLE v. SUPERIOR COURT FOR PIERCE COUNTY et al.

No. 27962.

Supreme Court of Washington

May 2, 1940

Department 1.

Original action by the State on the relation of Donald W. Lyle, for a writ of mandate requiring the Superior Court for Pierce County, Fred G. Remann, Judge, to grant a motion to dismiss without prejudice an action brought against the relator as defendant.

Writ granted.

Where plaintiff neglected to note action for trial or hearing within one year after an issue of law was joined, and failure to bring action on for trial or hearing was not caused by defendant, dismissal without prejudice on defendant's motion was mandatory under court rule, and defendant was entitled to a writ of mandate to compel the dismissal.Rem.Rev.Stat. § 308-3.

Eisenhower & Hunter, of Tacoma, for relator.

Charles T. Peterson, of Tacoma, for respondents.

MILLARD Justice.

Charles T. Peterson instituted an action January 24, 1939, in the Superior Court for Pierce County to recover against Donald W Lyle the value of merchandise sold by plaintiff Peterson to defendant Lyle between July 29, 1935, and February 8, 1936.A written notice of appearance was duly served by defendant upon the attorneys of record for plaintiff with request that all further pleadings and papers in the cause be served upon defendant's attorneys.Defendant's demurrer to the complaint, together with a motion to make the complaint more definite and certain, were served upon plaintiff's attorneys and filed February 10, 1939, with the clerk of the superior court for Pierce county.

Defendant filed a motion February 15, 1940, to dismiss the action for want of prosecution.The affidavit, which is not controverted and on which the motion to dismiss the action without prejudice is based, is to the effect that more than one year has elapsed since defendant served and filed his demurrer to the complaint and his motion to make the complaint more definite and certain; that neither of the attorneys representing defendant has had any discussion with the plaintiff or his attorneys relative to the action; and that defendant has not done anything to prevent a hearing to be had on the cause of action.

On February 17, 1940 the motion to dismiss came on regularly to be heard, at which time a bill of particulars was served on defendant's attorneys, and it is the only pleading or paper served on defendant after service of the summons and complaint January 24, 1939.After argument by the attorneys for the respective partiesthe trial court refused to dismiss the action, stating that he believed he had the right to exercise his discretion in the matter despite the language of Rule 3 of the Rules of Pleading, Procedure and Practice which was adopted by this court and because effective August 1, 1938.The rule 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.'Rem.Rev.Stat. § 308-3.

The cause is now Before us on order to show cause why we should not grant the application of defendant for a writ of mandate requiring the superior court for Pierce county to grant the motion to dismiss the action without prejudice.

The return of respondent, excusatory of refusal to grant the motion, is to the effect that the bill of particulars filed by plaintiff discloses that the last item of merchandise delivered by plaintiff to defendant was delivered January 24 1936, and that the complaint of plaintiff was filed on the last day within which it could have been filed to save the action from being barred by the three-year statute of limitations.It appeared to the respondent that if the motion to dismiss without prejudice were granted it would result in barring another action by plaintiff and that under the circumstances a dismissal would amount to a dismissal with prejudice.The court further answered that it appeared that the plaintiff was ready, willing and able to proceed with the trial of the cause and had not abandoned his action and had no intention of abandoning the same.

Substantially, respondent's attempted justification of its disregard of the above-quoted rule is that a dismissal of the cause would have worked an irreparable injury to plaintiff in that his cause of action would have been lost by reason of the statute of limitations, and that, under such circumstances, the overruling of the motion to dismiss was a fair and reasonable exercise of the discretion of the court in the matter.

It is unnecessary to cite and review the numerous authorities that where the express mandatory conditions of a statute or rule providing for dismissal of actions if not brought to trial within a specified time are clearly established and without contradiction the court is without discretion in the matter, and...