State ex rel. Washington Water Power Co. v. Superior Court for Chelan County

• Decision Date: 13 November 1952
• Docket Number: No. 32212,32212
• Citation: 41 Wn.2d 484,250 P.2d 536
• Court: Washington Supreme Court
• Parties: . Supreme Court of Washington, Department 1

Page 484

41 Wn.2d 484

250 P.2d 536

STATE ex rel. WASHINGTON WATER POWER CO. et al. v.SUPERIOR COURT FOR CHELAN COUNTY et al.

No. 32212.

Supreme Court of Washington, Department 1.

Nov. 13, 1952.

Rehearing Denied Jan. 23, 1953.

Paine, Lowe & Coffin, Spokane, R. D. Kendall, Wenatchee, for plaintiffs.

Harvey F. Davis, Sam R. Sumner Sr., and Sam R. Sumner, Jr., Wenatchee, for defendant.

WEAVER, Justice.

What effect, if any, does a written stipulation, that an action cannot be noted for trial by either counsel before an agreed date, have upon the application of Rule 3, Rules of Pleading, Practice and Procedure, 34A Wash.2d 69, which reads:

'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.'

October 30, 1945, Public Utility DistrictNo. 1 of Chelan County, a municipal corporation (to which we will refer hereafter as the 'district') filed a petition in eminent domain seeking condemnation of certain properties owned by The Washington Water Power Company.After various motions and demurrers had been disposed of, the court, on November 19, 1948, entered a decree of public use and necessity.The decree was reviewed and affirmed by this court.State ex rel. Washington Water Power Company v. Superior Court, 1949, 34 Wash.2d 196, 208 P.2d 849.An appeal to the United States supreme court was dismissed March 13, 1950, for want of a substantial federal question.State ex rel. Washington Water Power Company v. Superior Court, 339 U.S. 907, 70 S.Ct. 572, 94 L.Ed. 1335.The mandate of the United States supreme court was filed with the clerk of this court on May 1, 1950.

To this point, the case had been vigorously prosecuted and strenuously resisted.

On April 3, 1951, counsel for the district wrote counsel for the power company:

'I do not want our condemnation action against the Chelan Dam to get into position where it may be dismissed for want of prosecution under the Statestatute, and at the same time have no wish at the moment to bring the matter on for trial.

'I wonder if you would be willing to stipulate with me to the effect that the action shall not be set down for trial by either party until at least 90 days from date.

'I don't know at the moment which is the date from which the one year's statute would commence to run, so I want to be on the safe side. * * *'

On April 4, 1951, counsel for the power company replied:

'We would be willing to stipulate that neither party will note the case for setting for trial prior to September 1st.

If the case is not be tried I don't want to have to start getting ready for it in the middle of the summer.'(Italics ours.)

As a result of this correspondence, counsel prepared, signed and filed on April 12, 1951, a stipulation, thus meeting the requirements of Superior Court Rule 10, 34A Wash.2d 114.The stipulation provided:

'* * * that neither party shall bring on or note the above entitled cause for setting for trial prior to September 1st, 1951, and that the court is hereby requested to enter an order in accordance with the terms of this stipulation.'

Determining that it was unnecessary, the trial court did not enter the requested order.

Nothing further occurred until April 15, 1952, when counsel for the district wrote counsel for the power company inquiring whether the company would be willing to negotiate a sale of the property involved in the condemnation proceeding; if not, the district would proceed with the action.On April 22, 1952, the company filed its motion to dismiss for want of prosecution under Rule 3, heretofore set forth.

On June 18, 1952, the trial court entered its order denying the company's motion to dismiss, and, on the same day, set the cause for trial on January 5, 1953, on the issue of value of the property sought to be condemned.The order denying the motion to dismiss is before us now upon writ of review.

After argument upon the power company's motion to dismiss, the counsel for the company presented proposed findings of fact and conclusions of law.They were refused by the trial court.This was not error.Although Superior Court Rule 17, 34A Wash.2d 118, requires the trial court to make findings of fact in all cases, legal or equitable, it is not the purpose of the rule to require findings of fact and conclusions of law where they were not formerly required in actions at law.The issue presented to the trial court was purely one of law.Hence, no findings of fact were required.SeeLamar v. Anderson, 71 Wash. 314, 128 P. 672;State ex rel. Tollefson v. Novak, 7 Wash.2d 544, 110 P.2d 636;Cochran v. Nelson, 26 Wash.2d 82, 173 P.2d 769.

The power company contends: that issue was joined May 1, 1950, the date the mandate of the United States supreme court was filed with the clerk of this court; that since the period from May 1, 1950, to April 12, 1951, was 18 days short of a year, the district had 18 days after September 1, 1951, to note the case for trial; that not having done so, the case was subject to dismissal under Rule 3 on September 18, 1951.

Upon inquiry at oral argument, the district limited its contention, and argued that it could not be deemed in default under the rule until the expiration of one year after September 1, 1951, the date the stipulation expired.

Rule 3, which became effective in 1938

'* * * was adopted and promulgated by this court for the specific purpose of preventing, or at least of placing a limit upon, a practice under which many cases that had been long neglected, or had even been abandoned, were yet allowed to remain upon the docket of the trial court and to retain the appearance of being alive upon the records of the clerk.The procedure through which it formerly was necessary to go in order to rid the docket of such cases had been found to be uncertain as well as unsatisfactory in its result.

'To remedy the prevailing condition and to furnish the superior courts with some definite standard by which to deal with such situations when brought to their attention, the rule was inaugurated.Its purpose was not simply to dispose of those cases wherein an unreasonable length of time had been allowed to elapse after a demurrer, answer, or reply had been filed, but to cover all cases wherein for any reason the vice of procrastination existed.Permitting a case to slumber indefinitely upon some preliminary motion * * * is just as frequent an occurrence, as is that of permitting delay after the filing of the main, or essential, pleadings. * * *'State ex rel. Goodnow v. O'Phelan, 6 Wash.2d 146, 151, 106 P.2d 1073, 1075.

The provisions of the rule are mandatory.When the condition of the record is such that the rule applies, the court has no discretion.It must, upon motion, dismiss the action.State ex rel. Lyle v. Superior Court, 3 Wash.2d 702, 102 P.2d 246;State ex rel. Goodnow v. O'Phelan, supra;State ex rel. Seattle v. Superior Court, 6 Wash.2d 540, 108 P.2d 342;State ex rel. Woodworth & Cornell v. Superior Court, 9 Wash.2d 37, 113 P.2d 527;State ex rel. Dawson v. Superior Court, 16 Wash.2d 300, 133 P.2d 285;Craig v. Clearwater Concentrating Co., 21 Wash.2d 530, 151 P.2d 828.In applying the rule, the court cannot consider the merits of the case nor the hardship which its application may bring, even though the cause of action may, if dismissed without prejudice, be barred by the statute of limitations.State ex rel. Lyle v. Superior Court, supra.The obligation of going forward to escape the operation of the rule always belongs to the plaintiff(or cross-complainant) and not to the defendant.State ex rel. Lyle v. Superior Court, supra;State ex rel. Philips v. Hall, 6 Wash.2d 531, 108 P.2d 339.Nor can the plaintiff, by making an offer of settlement, extend the time for bringing his case on for trial.State ex rel. Pacific Fruit & Produce Company v. Superior Court, 22 Wash.2d 327, 155 P.2d 1005;seeState ex rel. Philips v. Hall, supra.

In order to obtain a dismissal under the provisions of Rule 3, a movant must show: (1) that an issue of law or fact was outstanding for a year; (2) that the complainant failed to note it for trial within one year after the issue arose; and (3) that the failure to note the cause for trial was not caused by the movant.

In State ex rel. Goodnow v. O'Phelan, supra, we said:

'* * * An issue of law or an issue of fact arises whenever in the progress of a legal action or proceeding it becomes necessary and proper to decide a question of law or a question of fact.* * * In adopting the rule, this court did not use the phrase 'any issue of law or fact' in the narrow and technical sense in which those words had been used in Rem.Rev.Stat., §§ 309, 310, and 311, but in the broader and more accurate sense of having reference to every issue of law or fact, however raised. * * *'6 Wash.2d at pages 150, 152, 106 P.2d at page 1075.

However, if there is no issue of law nor fact joined, then the rule has no application.State ex rel. Von Herberg v. Superior Court, 6 Wash.2d 615, 108 P.2d 826;Stickney v. Port of Olympia, 35 Wash.2d 239, 212 P.2d 821.Thus it is apparent, that each case moves in and out of the operation of the time limit fixed by Rule 3 as issues of law or issues of fact are raised and decided.Once the time has begun to run, it is terminated and ended when such issues are dissipated.It commences anew when another such issue is raised.

The exercise of the power of eminent domain is a special proceeding ordinarily involving the entry of three separate judgments.State ex rel. Grays Harbor Logging Co. v. Superior Court, 100 Wash. 485, 171 P. 238.The first is a decree...