108 P.2d 826 | Wash. | 1940
Lead Opinion
The admitted facts are: June 12, 1933, the Discount Corporation instituted an action on the assigned claim of Rosaia Bros. Florists, Inc., to recover from J.G. von Herberg and Mary von Herberg, husband and wife, the sum of $6,400. June 30, 1933, the defendants in that action filed a motion to make the complaint more definite and certain, and also demurred to the complaint. July 25, 1933, after hearing argument of counsel relative to the motion and demurrer, the court granted the motion and overruled the demurrer.
No further proceedings were had until October 17, 1939, when there was filed a motion, by Rosaia Bros. Florists, Inc., to be substituted as parties plaintiff. November 3, 1939, von Herberg and wife filed a motion *617
to dismiss the action upon the ground that the action had not been prosecuted within the time prescribed by Rem. Rev. Stat. (Sup.), § 308-3, Rules of Practice III (
The motions were heard together. The court granted the motion for substitution of parties and denied the motion to dismiss.
Thereafter, Rosaia Bros. Florists, Inc., filed an amended complaint which set up the same cause of action presented in the original complaint. An answer was then filed.
September 27, 1940, another motion to dismiss the action was filed. The basic ground of the last motion to dismiss was the failure to diligently prosecute the action, the movants pointing out in their supporting affidavit that this court, in the case ofState ex rel. Lyle v. Superior Court,
One of the first problems with which we are confronted is that raised by the fact that, at the time this action was begun, in 1933, the dismissal of an action for want of prosecution was discretionary with the court, there having been no mandatory provisions in our Rules of Practice relative to the matter. In view of that fact, respondent has resisted this motion upon the basis that the 1938 mandatory rule cannot be given a retroactive effect, there having been no provision therefor in the text thereof. However, we do not deem the objection to be well taken, in view of the fact that there was a lapse of more than a year from the date on which the mandatory rule took effect and the date *618 on which plaintiffs first took steps to prosecute their cause of action.
[1] Another question presents itself in the form of the timeliness of bringing this action for a writ of mandamus. InState ex rel. Hawksworth v. Clifford,
[2] Assuming, without deciding, that the action now before us was timely presented, we feel constrained to deny the writ, due to the fact that this case does not come within the wording of Rem. Rev. Stat. (Sup.), § 308-3, Rules of Practice III. That rule and statute are worded as follows:
"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 true that Rem. Rev. Stat., § 310 [P.C. § 8474], provides that an issue of law is raised by a demurrer, and that State exrel. Goodnow v. O'Phelan, ante p. 146,
The writ will be denied.
BEALS and JEFFERS, JJ., concur.
Concurrence Opinion
I concur in the result for the reason that relator's time for making application to this court began to run from the date its first motion to dismiss was denied; and this application is therefore not timely.
Concurrence Opinion
I concur in the majority opinion. However, State ex rel. Lylev. Superior Court,