State ex rel. Von Herberg v. Superior Court for King County, 28233.

• Decision Date: 18 December 1940
• Docket Number: 28233.
• Citation: 108 P.2d 826,6 Wn.2d 615
• Parties: STATE ex rel. VON HERBERG et al. v. SUPERIOR COURT FOR KING COUNTY et al.
• Court: Washington Supreme Court

108 P.2d 826

6 Wn.2d 615

STATE ex rel. VON HERBERG et al. v. SUPERIOR COURT FOR KING COUNTY et al.

No. 28233.

Supreme Court of Washington

December 18, 1940

Department 2.

Original mandamus proceeding by the State of Washington, on the relation of J. G. Von Herberg and another, against the Superior Court of the State of Washington for King County and others.

Writ denied.

Cosgrove Terhune & Schlosstein, of Seattle, for respondents.

SIMPSON Justice.

This is an original mandamus action instituted by relators for a writ of mandate requiring the superior court of King county to grant a motion for the dismissal of an action pending in that court since June, 1933.

The admitted facts are: June 12, 1933, the Discount Corporation instituted an action on the assigned claim of Rosaia Bros Florists, Inc., to recover from J. G. von Herberg and Mary von Herberg, husband and wife, the sum of $6,400. June 30 1933, the defendants in that action filed a motion to make the complaint more definite and certain, and also demurred to the complaint. July 25, 1933, after hearing argument of counsel relative to the motion and demurrer, the court granted the motion and overruled the demurrer. No further proceedings were had until October 17, 1939, when there was filed a motion, by Rosaia Bros. Florists, Inc., to be substituted as parties plaintiff. November 3, 1939, von Herberg and wife filed a motion to dismiss the action upon the ground that the action had not been prosecuted within the time prescribed by Rem.Rev.Stat.Supp. § 308-3; Rules of Practice III (193 Wash. 40-a), adopted May 1 1938.

The motions were heard together. The court granted the motion for substitution of parties, and denied the motion to dismiss.

Thereafter, Rosaia Bros. Florists, Inc., filed an amended complaint which set up the same cause of action presented in the original complaint. An answer was then filed.

September 27, 1940, another motion to dismiss the action was filed. The basic ground of the last motion to dismiss was the failure to diligently prosecute the action, the movants pointing out in their supporting affidavit that this court, in the case of State ex rel. Lyle v. Superior Court, 3 Wash.2d 702, 102 P.2d 246, had held the provisions of Rem.Rev.Stat.Supp. § 308-3, were mandatory, and not merely permissive. After hearing arguments of counsel relative to the motion, it was denied by the court, the denial resulting in this mandamus action.

One of the first problems with which we are confronted is that raised by the fact that at the time this action was begun, in 1933, the dismissal of an action for want of prosecution was discretionary with the court, there having been no mandatory provisions in our Rules of Practice relative to the matter. In view of that fact, respondent has resisted this motion upon the basis that the 1938 mandatory rule cannot be given a retroactive effect, there having been no provision therefor in the text thereof. However, we do not deem the objection to be well taken, in view of the fact that there was a lapse of more than a year from the date on which the mandatory rule took effect and the date on which plaintiffs first took steeps to prosecute their cause of action.

Another question presents itself in the form of the timeliness of bringing this action for a writ of mandamus. In State ex rel. Hawksworth v. Clifford, 130 Wash. 103, 226 P. 272, we held that although there is no statutory provision governing the time in which such writs must be sought, the proper rule is that it should be sought within the same period as that allowed for an appeal. In the instant case the fact is that this action was not brought within the time allowed for an appeal, if we measure the lapse of time from the date on which the first motion for dismissal was denied. However, the court heard the arguments of counsel relative to a second motion for dismissal, and if we measure the lapse of time from the date of the denial of that motion, this action is timely.

Assuming without deciding, that the action now Before us was timely presented, we feel constrained to deny the writ, due to the fact that this case does not come within the wording of Rem.Rev.Stat.Supp. § 308-3, Rules of Practice III. That rule and statute are worded as...