Storey v. Shane

• Decision Date: 01 August 1963
• Docket Number: No. 36827
• Citation: Storey v. Shane, 62 Wn.2d 640, 384 P.2d 379 (Wash. 1963)
• Parties: Lawrence J. STOREY, Respondent, v. George SHANE and Lillian B. Shane, his wife, and George Shane, Jr., Relators.
• Court: Washington Supreme Court

Page 640

62 Wn.2d 640

384 P.2d 379

Lawrence J. STOREY, Respondent, v.George SHANE and Lillian B. Shane, his wife, and George Shane, Jr., Relators.

No. 36827.

Supreme Court of Washington, Department 1.

Aug. 1, 1963.

Stephen E. Chaffee, Sunnyside, for appellants.

Dwight A. Halstead, Prosser, for respondent.

HALE, Judge.

This is a writ of certiorari to the Superior Court to review the refusal of that court to dismiss a pending civil action for want of prosecution within one year under Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. O, 4 Orland's Washington Practice 257.

In passing upon the questions raised, we cannot escape the need to detail chronologically the operative events.RespondentLawrence J. Storey brought an action to foreclose a lien on relator George Shane's property for repairs to a well.The summons and complaint were served in November, 1960.Relators joined issue by service of their answer, affirmative defense and cross-complaint about three months later, on February 10, 1961.No party had taken steps to note the cause for trial when, after the lapse of four more months, on June 20, 1961, respondent moved for a summary judgment on his complaint and dismissal of relators' cross-claim.This motion was based upon the pleadings, respondent's own and two other affidavits, and asserted that no genuine issue of fact remained to be litigated.Relators promptly met the motion for summary judgment with affidavits, regular and telegraphic, and prevailed at the hearing thereon, on June 30, 1961, when the court denied respondent's motion for summary judgment by formal order.

The case lay dormant from June 30, 1961, the date the summary judgment was denied, for nearly nine more months, when, on April 17, 1962, respondent served and filed a notice of trial setting to be heard April 20, 1962.In this notice, given pursuant to local rules, Superior Court of the State of Washington for Yakima County, he represented that the case was at issue, no affirmative pleadings remained unanswered, all pleadings were on file, and that the case was ready for trial.These statements are material to this review only insofar as they show that respondent must have deemed the case at issue on February 10, 1961, with the filing of the answer and cross-complaint, since no additional pleadings were filed thereafter by either party.

On the day next after relators received the notice of trial setting, on April 18, 1962, they served and filed their motion to dismiss the action for want of prosecution within one year from joinder of issue, and they rely upon Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. O, which states '(a) Dismissal on Motion of Parties.Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff counter-claimant, cross-claimant, or thirdparty plaintiff neglects 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.'

We can better understand the categorical nature of this rule by a reading of § (b)(Rule of Pleading, Practice and Procedure 41.04W(b), RCW Vol. O) which requires the clerk of the superior court to take action to secure dismissal of all cases inactive for more than one year on January 1st and July 1st of each year.

The writ of certiorari raises only one question: Does a ruling on a motion for summary judgment made in good faith toll Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. O, which makes dismissal of the action mandatory when there is a want of prosecution for one year from joinder of issue?

Our decision must be reached in consonance with several principles taken to be the law, among which is the fundamental rule that a cause is at issue when the answer is served.Burns v. Payne, 160 Wash.Dec. 327, 373 P.2d 790.The duty to bring the case on for trial, or to take such other steps as may be available to resolve the issues of law and fact raised by the claim and answer, rests upon the party bringing the action.In State ex rel. Pacific Fruit and Produce Co. v. Superior Court, 22 Wash.2d 327, 155 P.2d 1005, the burden was placed squarely upon the plaintiff in this language:

'* * * Plaintiff is the attacking party and must by prompt action comply with [this] rule under consideration. * * *'

We amplified this in Bishop v. Hamlet, 58 Wash.2d 911, 365 P.2d 600, referring again to Rule 41.04W, supra, when the court said:

'* * * the obligation of going forward to avoid the operation of the rule always belongs to the plaintiff or cross-complainant * * * and not to the defendant. * * *'

Of similar import is State ex rel. Philips v. Hall, 6 Wash.2d 531, 108 P.2d 339;State ex rel. Lyle v. Superior Court, 3 Wash.2d 702, 102 P.2d 246.

Serving...