79 Wash. 616 | Wash. | 1914
This is an appeal from a judgment dismissing an action for want of prosecution. The complaint was filed and the summons was served upon the defendants on October 15, 1906. The complaint and summons were signed by E. B. Preble as attorney for plaintiffs. The defendants demurred to the complaint on all of the statutory grounds, on October 61, 1906. On January 11, 1907, an order was entered granting leave to the defendants to withdraw their demurrer and answer the complaint within fifteen days. On June 6, 1907, a stipulation between counsel for the respective parties was filed giving the defendants until August 15, 1907, in which to file an answer or such other pleadings as they desired, or to move the court for such other orders or relief as they might deem necessary. On October 1, 1907, E. B. Preble was appointed superior judge. On May 6, 1909, another stipulation of exactly the same purport was signed by counsel for the respective parties, extending the defendants’ time for further action until June 15, 1909. Judge Preble signed this stipulation as attorney for plaintiffs. On June 15, 1909, the defendants again demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The record shows that this demurrer was served upon E. B. Preble as plaintiffs’ then attorney.
On February 2, 1911, the defendants moved to dismiss the action for want of prosecution. This motion recites that the plaintiffs had abandoned the action and, for more than eighteen months prior to the filing of the motion, had no attorney in charge of the cause, nor any attorney of record or known to the defendants. The motion also recites that it
On February 14, 1911, Snively and Bounds, attorneys of North Yakima, served and filed in the action a notice that they appeared and represented the plaintiffs therein. On April 12, 1911, an affidavit of Judge Preble was filed, setting forth certain verbal agreements for indefinite continuance pending propositions for settlement and an understanding that the litigation might be resumed at the convenience of both parties.
On April 18, 1913, the plaintiffs caused to be served upon the attorney for the defendants, and filed in the cause, a sworn substitution of attorneys, reciting, in substance, that the firm of attorneys of which Judge Preble had been the senior member had been the plaintiffs’ attorneys of record since the commencement of the action, and that, “so far as plaintiff is advised, they still are such attorneys of record although said firm no longer existsthat the plaintiff has no recollection of ever having authorized the substitution of H. J. Snively as attorney, and revokes the appointment of every attorney for the plaintiffs theretofore appointed, and appoints E. B. Velikanje as sole attorney for plaintiffs with authority to employ such associate counsel as he may deem best. On the same day, Mr. Velikanje, as attorney for plaintiffs, served and filed' a notice of argument of the last demurrer of the defendants which had been filed on June 15, 1909. On the same day, April 18, 1913, the de
The respondents interpose a motion in this court to strike from the transcript the affidavit of Judge Preble referred to in our statement of the case. This affidavit was neither attached to nor referred to in any motion. The appellants failed to propose or have certified any statement of facts. The case is here upon a transcript of the files in the clerk’s office certified by the clerk. In this transcript, are copies of the affidavit above referred to and an affidavit of the respondents’ attorney, apparently filed in support of his original motion to dismiss on February 3, 1911. These affidavits are not properly a part of the record. They are in the nature of evidence which can only be brought to this court by a statement of facts properly proposed, settled and certified. We said in Hayworth v. McDonald, 67 Wash. 496, 121 Pac. 984, “We have, in a long line of cases, held that affidavits filed as proof of particular facts cannot be made a part of the record in this court by the mere certification of the clerk.” See, also, to the same effect: State v. Lee Wing Wah, 53 Wash. 294, 101 Pac. 873; Haines & Spencer v. Kelley, 57 Wash. 219, 106 Pac. 776; Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 Pac. 495; Spoar v. Spokane Turn-Verein, 64 Wash. 208, 116 Pac. 627; Sakai v. Keeley, 66 Wash. 172, 119 Pac. 190; Hale v. City Cab, Carriage & Transfer
The record proper, which alone we are at liberty to consider, carries conviction that the court did not abuse its discretion in dismissing the action. It had been pending since October 15, 1906. The only affirmative measure thereafter taken looking even to the formation of an issue was taken by the respondents. Continuances by stipulation, presumably to meet the convenience of both parties, were had, the last extending inaction to June 15, 1909. The respondents then filed a demurrer presenting an issue of law. So the case remained until February, 1911, when the respondents moved for a dismissal. The case again stood pending upon this motion until April 18, 1913. During all of the time since October, 1907, the appellants, as fairly appears from their substitution of attorneys, were “so far as they were advised” without any attorney save a dissolved firm, no member of which, as an individual, so far as the record shows, had any authority to represent them. When, in April, 1913, the appellants finally secured an attorney, they took steps, not to purge the record of the pending motion to dismiss, but to call up the demurrer. The trial court committed' no error in disposing of the latter motion first without regard to the appellants’ belated notice seeking to call up the demurrer, which ignored the pendency of the motion going to their very right to prosecute the action. The case is thus clearly dis
“The discretion of the court in dismissing this action, under the circumstances shown by the record, cannot be questioned, nor do we think that the fact that the statute permits the defendant to bring a case on to hearing deprives the court of its unquestioned common-law, if not inherent, power to clear its dockets of abandoned or stale actions.”
See, also, First Nat. Bank of Fond du Lac v. Hunt, 40 Wash. 190, 82 Pac. 285. It seems consonant with reason that a plaintiff who hales a defendant into court assumes and, so long as he has the affirmative of the main issue, retains the duty of diligent prosecution. Neff v. Neff, 32 Wash. 82, 72 Pac. 1011; Arthur v. Washington Water Power Co., 42 Wash. 431, 85 Pac. 28; Rehmke v. Fogarty, 57 Wash. 412, 107 Pac. 184. As said by the supreme court of California in a case also closely analogous to this:
“But it is said that it was not the duty of the appellants to have urged the hearing of the demurrer; that this should have been done by the respondents, who filed it; and hence that the court was wrong in assuming that the laches of the appellants justified a dismissal of the action. The appellants*622 -brought the action; it would seem that upon them rested the burden of prosecuting it to a finality, send that as a step in that direction, from the facts then appearing to the court, they should have taken measures to have demurrers determined so that the action could progress.” Kubli v. Hawkett, 89 Cal. 638, 641, 642.
See, also, Simmons v. Keller, 50 Cal. 38; Hassey v. South San Francisco Homestead & R. Ass’n, 102 Cal. 611, 36 Pac. 945; San Jose Land & Water Co. v. Allen, 129 Cal. 247, 61 Pac. 1083; Mowry v. Weisenborn, 137 Cal. 110, 69 Pac. 971; Gray v. Times-Mirror Co., 11 Cal. App. 155, 104 Pac. 481; Lambert v. Brown, 22 N. D. 107, 132 N. W. 781.
There was no abuse of the trial court’s discretion.
The judgment is affirmed.
Crow, C. J., Main, Chadwick, and Gose, JJ., concur.
