Swan v. Landgren, 416--III

• Decision Date: 13 April 1972
• Docket Number: No. 416--III,416--III
• Citation: 6 Wn.App. 713,495 P.2d 1044
• Parties: Robert A. SWAN, Respondent, v. Charles L. LANDGREN and Kathryn M. Landgren, his wife, Appellants.
• Court: Washington Court of Appeals

Page 713

6 Wn.App. 713

495 P.2d 1044

Robert A. SWAN, Respondent, v. Charles L. LANDGREN and Kathryn M. Landgren, his wife, Appellants.

No. 416--III.

Court of Appeals of Washington, Division 3.

April 13, 1972.

Ted Kolbaba, White Salmon, for appellants.

L. Eugene Hanson, Goldandale, for respondent.

MUNSON, Chief Judge.

The sole question presented by this appeal is: When does the superior court's authority to control its trial calendar begin? We answer: When the complaint is filed or the summons served.

On April 17, 1970 plaintiff commenced a replevin action. On April 29, 1970 defendants filed a notice of appearance. On July 7, 1970 defendants filed a motion for change of judge, disqualifying the resident superior court judge for Klickitat County. On July 15, 1970 ¹ the Supreme Court assigned a judge of the Benton-Franklin judicial district to preside over the case. On January 5, 1971 the appointed judge wrote a letter to defense counsel advising:

My records indicate that no action had been taken on the above cause since July 17, 1970 when the Supreme Court assigned it to a visiting judge. Based on this information it appears that the matter should be disposed of by trial during the next visitation by one of our Benton-Franklin District judges.

Accordingly, the matter is set for Tuesday, January 19th at 9:30 a.m.

Please note that no pleadings other than the complaint, Notice of Appearance, Motion for Change of Judge are on file.

On January 13, 1971 defense counsel responded that the indicated trial date was neither acceptable nor proper since the case was not at issue. The matter came on for hearing January 19, 1971, at which time defendants again advised the court it was improper to set the case for trial when: (1) it was not at issue, CR 40(a)(1); (2) neither party requested a trial setting; or (3) plaintiff had not moved for default, CAROA 55(a)(1).

The trial court held: Defendants had ample notice the matter would come on for Hearing and Disposition but failed to remedy this default; consequently, judgment would be granted in plaintiff's favor. Defendants moved for reconsideration. The motion was denied and defendants appealed.

As observed by the Honorable James M. Carter, Effective Calendar Control--Objectives and Methods, 29 F.R.D. 227 et seq. (1961): ²

(I)t is fair to say that two divergent lines of thought are generally involved in the problem of judicial administration or control of litigation. One holds that a judge's function is to try cases only, and that it is the responsibility of counsel to prepare their cases for trial and get them on calendar.

The other line of thought holds that the function of the judge is not only to try cases, but to actively control his calendar, require preparation, get the case early on the calendar and keep it on the calendar until the case is either dismissed, settled or tried, and thereby avoid calendar congestion.

We conclude Washington has adopted the latter approach. Article 4 of the Washington State Constitution defines the jurisdiction of our courts. However, article 4 does not purport to regulate or control the manner in which the courts exercise their respective jurisdictions. As a result, such matters are left for the courts to handle in any lawful manner which the constitution does not directly prohibit. Daniel v. Daniel, 116 Wash. 82, 84, 198 P. 728 (1921).

Notwithstanding this inherent power of the court, the legislature historically has passed laws regulating court procedures. However, in 1925 the legislature authorized the Supreme Court to promulgate rules 'to promote the speedy determination of litigation on the merits.' ³ Since that time, the Supreme Court has not only adopted civil and criminal rules of procedure, but has sustained their constitutionality. State ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1, 267 P. 770 (1928); White v. Million, 175 Wash. 189, 195, 27 P.2d 320 (1933). Not all the laws governing civil procedure, however, have been superseded by these rules. Therefore, we must examine the Civil Rules for Superior Court and the pertinent statutes to answer the question presented here. ⁴

RCW 4.28.020 and CR 3 state in part that a civil action is commenced by the service of a summons or by the filing of a complaint. Johnson v. Asotin County, 3 Wash.App. 659, 477 P.2d 207 (1970); Bethel v. Sturmer, 3 Wash App. 862, 479 P.2d 131 (1970). The statute goes further than the rule, however, and provides that from the time an action is commenced the court 'is deemed to have acquired jurisdiction and to have control of all subsequent proceedings.' From this statutory language we conclude that the trial court acquires jurisdiction for all purposes, including the power to control its own calendar. The court's exercise of this power, however, is discretionary. When the court does not directly exercise this power, a party, by making the proper application of the court rules, is provided the procedural means to move the case through the various steps toward ultimate determination. RCW 4.44.020; CR 40(a)(1), (2), and (5).

Here neither party utilized any procedure 'to secure the just, speedy, and inexpensive determination of every action.' ⁵

The trial court, exercising its discretion, notified counsel 'that the matter should be disposed of by trial' on January 19, 1971, although it was not then at issue. In RCW 4.44.010, 'trial' is defined as:

A trial is the judicial examination of the issues between the parties, whether they are issues of law or of fact.

In RCW 4.40.010, an 'issue' is defined as:

Issues arise upon the pleadings when a fact or conclusion of law is maintained by one party and controverted by the other, . . .

There could be no trial in the instant case because it was not at issue.

Thus we conclude that while the trial court had the power to supervise the progression of this case, it could only do so within the framework established by the pleadings as they existed on January 5, 1971, when the court wrote its letter. That letter referred to a trial. We feel the distinction between 'default' and 'trial' must necessarily be preserved to assure due process of law. By noting the matter for trial, the court exceeded its procedural powers in light of the posture of the case as of January 5, 1971. This action results in an abuse of discretion. Friedlander v. Friedlander, 80 Wash.2d 293, 494 P.2d 208 (1972).

However, the court did not have the power to (1) order counsel 'to appear before it for a conference to consider: . . . Such other matters as may aid in the disposition of the action' (CR 16(a)(5)), or (2) could 'make orders for the advancement, conduct, and hearing of actions' (CR 77(k)). ⁶ Furthermore, had the court advised in its letter that it would grant a default unless an answer had been filed by January 19,...