Opinion
No. 35059.
April 2, 1959.
Application filed in the supreme court February 10, 1959, for a writ of prohibition restraining the superior court for King county, Gaines, J., from vacating an order dismissing an action for malpractice. Granted.
Rosling, Williams, Lanza Kastner and Paul C. Gibbs, for relator.
Kennett, Evans Stafford, for respondent.
This is a malpractice action. The pleadings were closed by the plaintiff's reply to the answer of the defendants on January 6, 1958. One year later, on January 7, 1959, the defendants moved to dismiss under Rule of Pleading, Practice and Procedure 3, 34A Wn. 2d 69. On January 19, 1959, the motion was granted, and the action was dismissed by written order. On January 21, 1959, the plaintiff served a motion for new trial and a motion to vacate, which motions came on for hearing on January 29, 1959. At the conclusion of the argument, the trial court indicated it was of the opinion that the order of January 19, 1959, dismissing the action, was erroneous and that it would vacate the same. On February 10, 1959, the defendants petitioned for a writ of prohibition. An order to show cause why the writ of prohibition should not issue was entered by the chief justice on the same day. On February 17, 1959, plaintiff appealed from the order of January 19, 1959, dismissing the action.
The court is of the opinion that the writ of prohibition should issue herein. This, however, is without prejudice to the determination on appeal of the validity of the order of dismissal entered on January 19, 1959, from which order the plaintiff, Edward W. Franks, appealed on February 17, 1959.
May 18, 1959. Petition for rehearing denied.
REPORTER'S NOTE.
By order of the Supreme Court dated December 13, 1957, the reporter was directed not to publish any opinion of the Supreme Court in bound volumes of the Washington Reports while a petition for rehearing is pending, and until after the final determination if a rehearing is granted.
Pursuant to the above order, the opinion in the following case, which was published in Vol. 153 of the Washington Decisions, has been withheld from publication in the current volume:
No. 34084 King County Employees' Ass'n v. State Employees' Retirement Board