Opinion
No. 36620.
October 18, 1962.
DISMISSAL AND NONSUIT — INVOLUNTARY — WANT OF PROSECUTION — JOINING OF ISSUES — WHAT CONSTITUTES. A cause was at issue upon the serving of the complaint and answer, notwithstanding that such pleadings had not been filed with the clerk of the court.
SAME — PROVISIONS OF RULE MANDATORY. Where it is established that the failure to note a cause for trial within one year after it was at issue was not caused by the party moving for a dismissal under Rule of Pleading, Practice and Procedure 41.04W, the court exercises no discretion in granting the motion.
SAME — EXCUSE FOR FAILURE TO NOTE FOR TRIAL. A defendant's request for a jury after an attempt by the plaintiff to note a cause for trial more than a year after the cause was at issue could not have misled the plaintiff since the defendant was entitled to a trial by jury as a matter of right, nor did the jury request affect the defendant's motion to dismiss for want of prosecution, since Rule of Pleading, Practice and Procedure 41.04W provides for no extensions of time because of pretrial procedures.
See Ann. 112 A.L.R. 1158, 80 A.L.R. 2d 1404; Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit § 78.
Application filed in the Supreme Court June 29, 1962, for a writ of mandamus. Granted.
Rosling, Williams, Lanza Kastner, by William D. Cameron, for defendants and relators.
Michel P. Stern (of Robbins, Oseran Robbins), for respondent.
In this proceeding, the relators seek a writ of mandamus directing the respondent to dismiss a pending claim without prejudice.
[1] In King County cause No. 573459, the complaint was served September 7, 1960, but not filed with the clerk of the court until September 19, 1961. The answer was served October 4, 1960, but not filed until November 3, 1961. The cause was at issue October 4, 1960, upon the serving of the answer. Burns v. Payne, ante p. 323, 373 P.2d 790 (1962). It was not noted for trial until December 4, 1961. Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. 0, in so far as material here, provides:
"Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the 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. . . ."
[2] The record establishes that the failure to note the cause for trial within one year was not caused by the party making the motion to dismiss. Under these facts, the court exercises no discretion in granting the motion. Burns v. Payne, supra; Gray v. Olin Mathieson Chemical Corp., ante p. 236, 373 P.2d 481 (1962); Franks v. Douglas, 57 Wn.2d 583, 358 P.2d 969 (1961).
[3] Plaintiffs attempted to note the cause for trial after one year had elapsed. Relators, upon being served, immediately requested a jury and promptly moved to dismiss. Under these facts, the plaintiffs were not misled by relators' pretrial request for a jury. Relators were entitled to a trial by jury, as a matter of right. Further, the request for a jury did not indicate a clear intention on the part of the relators to waive a known right.
In Gray v. Olin Mathieson Chemical Corp., supra, we said:
"The rule provides for no extensions of time because of depositions, interrogatories, demands for admissions, or pretrial procedures. [Citing case.] The requirement remains that an action must be noted for trial within one year after it is at issue."
See, also, O'Connor v. Tesdale, 34 Wn.2d 259, 209 P.2d 274 (1949); State ex rel. Pacific Fruit Produce Co. v. Superior Court, 22 Wn.2d 327, 155 P.2d 1005 (1945); Carter v. Curlew Creamery Co., 16 Wn.2d 476, 134 P.2d 66 (1943); Constantino v. Moreschi, 9 Wn.2d 638, 115 P.2d 955 (1941); State ex rel. Philips v. Hall, 6 Wn.2d 531, 108 P.2d 339 (1940).
For the reasons stated, the writ will issue, directing respondent to enter judgment of dismissal in King County cause No. 573459, in compliance with Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. 0, supra.