State ex rel. Woodworth & Cornell, Inc. v. Superior Court for King County
| Decision Date | 23 May 1941 |
| Docket Number | 28350. |
| Citation | 113 P.2d 527,9 Wn.2d 37 |
| Court | Washington Supreme Court |
| Parties | STATE ex rel. WOODWORTH & CORNELL, Inc., v. SUPERIOR COURT FOR KING COUNTY. |
Original mandamus action by the State of Washington, on the relation of Woodworth & Cornell, Inc., against the Superior Court of the State of Washington for King County, Honorable James T Lawler, Judge thereof, to compel the Judge to dismiss for want of prosecution a certain cause of action as to the relator.
Peremptory writ directing the superior court to enter an order dismissing the action without prejudice in so far as it affects relator, to issue.
Hayden, Metzger & Blair and Merton Elliott, all of Tacoma, for appellant.
Rummens & Griffin and Schramm, Walthew & Mifflin, all of Seattle, for respondent.
A petition was filed in this court by relator, Woodworth & Cornell, Inc., for a writ of mandamus to compel Honorable James T. Lawler, judge of the superior court for King county, to dismiss for want of prosecution, in accordance with rule III, Rules of Practice, 193 Wash. 40-a, Rem.Rev.Stat. (Sup.), § 308-3, effective August 1, 1938, a cause of action as to relator. In response to an order to show cause, issued by the chief justice of this court, respondent judge filed an answer and return. A transcript of the proceedings in the superior court has also been filed herein.
The action pending in the superior court above referred to was one instituted by L. Romano Engineering Corporation against Northern Pacific Railway Company, Northwestern Improvement Company, and Woodworth & Cornell, a corporation, relator herein. The complaint charged the defendants with conspiracy, by reason of which plaintiff claims it was deprived of the fruits of an expected contract to sell gravel to the United States government, thereby damaging plaintiff in the sum of $77,891.
The action was commenced by the Engineering Co. on August 17, 1938. Issue of fact was joined by the service and filing of an answer by relator, November 18, 1938. On November 21, 1938, the action was duly noted for assignment for trial, and was thereafter set for trial on May 2, 1939. The Engineering Co. caused the action to be stricken from the trial calendar on April 21, 1939. This was done without notice to or any agreement with relator.
It should be noted that in the superior court action, defendant Woodworth & Cornell was represented by Hayden, Metzger & Blair, of Tacoma, and appeared separately in that action. Northern Pacific Railway Company and Northwestern Improvement Company appeared by Robert S. Macfarlane, Dean H. Eastman and Earl F. Requa.
After the cause was stricken from the trial calendar on April 21, 1939, the case was renoted by the Engineering Co. for trial on June 27, 1939. No notice of this renotation was served upon relator or its attorneys. On December 2, 1939, the case was again stricken from the trial calendar, at the request of the Engineering Co. The case was again renoted for trial, April 18, 1940, and on November 16, 1940, the case was set for trial for February 25, 1941. Neither relator nor its attorneys were notified in any way that the action had been noted for trial after it was stricken from the calendar on April 21, 1939, and were not notified of, nor did relator in any way participate in, the fixing of the trial date, February 25, 1941.
The only notice of the assignment of the case for trial after April 21, 1939, was served upon counsel for the Northern Pacific Railway Company and Northwestern Improvement Company.
On January 25, 1941, relator filed its motion and affidavit for dismissal as to it, under rule III, supra. This motion was by the trial court denied, and relator instituted this proceeding.
Rule III provides: '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.'
It is not contended here that, if the action was not noted within the year, such failure was in any way caused by relator.
The main question here presented concerns the meaning of the phrase 'note the action for trial or hearing,' as employed in rule III.
It is contended by relator that there has not been a valid notation for trial of the action, as to an interested adverse party, until there has been service upon such party of notice of the proceedings, in accordance with the provisions of Rem.Rev.Stat., § 319, which provides in part: 'At any time after the issues of fact are completed in any case by the service of complaint and answer or reply when necessary, as provided in title three, either party may cause the issues of fact to be brought on for trial, by serving upon the opposite party a notice of trial at least three days Before any day provided by rules of court for setting causes for trial, which notice shall give the title of the cause as in the pleadings, and notify the opposite party that the issues in such action will be brought on for trial at the time set by the court.'
Respondent, on the other hand, takes the position that noting the case for trial as to part of the defendants was a noting of the action for trial, and a sufficient compliance with the rule, also contending that relator, by participating in the taking of depositions preliminary to trial, waived its right to invoke the provisions of the rule. Respondent further contends there was no showing of bad faith on the part of the Engineering Co., and that the omission of service upon relator was pure inadvertence.
It is apparent from the above section that it is a statutory requisite for noting a cause for trial, that proper notice be served upon the opposite party, at least three days Before the setting of such cause for trial.
We do not understand respondent to deny the necessity of this service of notice to validate the notation referred to in rule III. The argument that this requisite service has been complied with by service upon only one of the several defendants seems to us to be without merit. Defendants were charged with civil conspiracy, and are jointly and severally liable. The action may be...
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...required by rule ... unless the failure to bring it on was caused by the party seeking dismissal.” State ex rel. Woodworth & Cornell v. Superior Court, 9 Wash.2d 37, 42, 113 P.2d 527 (1941) (predecessor ...
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