Bishop v. Hamlet

365 P.2d 600, 58 Wash. 2d 911, 1961 Wash. LEXIS 383

• Court: Washington Supreme Court
• Decided: October 13, 1961
• Docket: 35713
• Status: Published

Opinions

Finley, C. J.

This case comes to us on an agreed statement of facts. It is conclusively established that on March 10,1959, respondent obtained a judgment for $230.92 against appellant in a justice of the peace court in King County. Appellant appealed to the superior court on March 27, 1959. Nothing further was done until May 19, 1960, when appellant moved in the superior court for a dismissal of the action for want of prosecution under Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. O. Sometime later, respondent moved that the superior court dismiss the appeal from the justice court. Appellant’s motion to dismiss the action was denied; respondent’s motion to dismiss the appeal was granted. Appellant assigns error to both rulings of the superior court.

The first question raised by appellant’s assignments of error is the effect of Rule of Pleading, Practice and Procedure 41.04W upon appeals from justice of the peace courts to the superior courts. The pertinent portion of the rule reads as follows:

“(a) Dismissal on Motion of Parties. Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff, counterclaimant, cross-claimant, or third-party pláintiff 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 w'as 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.”

Appellant argues that the rule is clear and mandatqry; that respondent was the plaintiff in the justice court and retained that status in the superior court; and that, because respondent did not note the action for trial within one year after appellant took it to the superior court, the action should have been dismissed. There is some support for this line of argument in cases from other states. Yost v. Gadd (1939), 227 Iowa 621, 288 N. W. 667; Western Union Telegraph Co. v. McKee Bros. (Tex. Civ. App., 1911), 135 S. W. 658. However, we cannot agree with appellant’s argúment or with the conclusions of the cases above cited. Rule 41.04W, supra, is clearly designed to avoid procrastination by the moving party; i.e., the party responsible for the presence of the case or the claim on the records of the superior court. In Friese v. Adams (1954), 44 Wn. (2d) 305, 267 P. (2d) 107, we observed that the requirement of the rule is that the moving party must note the action for trial or hearing in order to avoid a dismissal. We also have stated, in a case involving an original action in the superior court, that the plaintiff is the “attacking party and must by prompt action comply with the rule under consideration.” (Italics ours.) State ex rel. Pacific Fruit & Produce Co. v. Superior Court (1945), 22 Wn. (2d) 327, 155 P. (2d) 1005.

We have said on occasion, as appellant points out, that the obligation of going forward to avoid the operation of the rule always belongs to the plaintiff or cross-complainant (with the recent amendment of the rule, we could add other initiating parties) and not to the defendant. State ex rel. Washington Water Power Co. v. Superior Court (1952), 41 Wn. (2d) 484, 250 P. (2d) 536, and cases cited therein. The correctness of the statement, where the rule applies, cannot be disputed. We do not think the rule applies to appeals from justice of the peace courts to the superior courts.

The moving party, or the attacking party, in an appeal is, of course, the appellant, regardless of his status as plaintiff or defendant in the justice court. The rule is designed to prod the moving party or make him suffer the consequences of his own delay. It would be unreasonable to require the victorious justice court plaintiff who is content with his judgment and who does not desire further relief once again to take the initiative because his less-satisfied adversary has taken the case into the superior court. Rule 41.04W, supra, we are convinced, does not and should not apply to appeals from justice of the peace courts.

(Perhaps it should be pointed out that

“ . . . The issue before the justice shall be tried in the superior court without other or new pleadings, unless otherwise directed by the court.” RCW 12.36.050.

This makes inapposite the reasoning of Black v. H. Feinberg Furniture Co. (1938), 39 Del. 523, 3 A. (2d) 62, which held that the burden of a statute similar to Rule 41.04W (supra) was on whoever was the plaintiff in the justice court, because new pleadings would have to be filed and, if the plaintiff did nothing, there would be no way for the appellant-defendant to get the ball rolling.)

The trial court did not err in denying appellant’s motion for dismissal of the case for want of prosecution.

Appellant’s second assignment of error — that the trial court should not have granted respondent’s motion to dismiss the appeal — likewise is without merit. The power to dismiss cases for want of diligent prosecution is inherent in the courts; no express authorization is necessary. See Seely v. Gilbert (1943), 16 Wn. (2d) 611, 134 P. (2d) 710; 17 Am. Jur., Dismissal, Discontinuance, and Nonsuit, § 77¹; and 27 C. J. S., Dismissal and Nonsuit, § 65(l)b.² Appellant offers no arguments, other than those directed to Rule 41.04W, supra, as to why the dismissal was erroneous or an abuse of discretion. No such reasons are apparent from the agreed statement of facts.

The judgments of the trial court are in all respects affirmed.

Hill, Weaver, and Rosellini, JJ., concur.

1 " . . . By the great weight of authority the power of the courts to dismiss a case because of a failure to prosecute with due diligence is said to be inherent and independent of any statute or rule of court.

2 "Although there is authority to the contrary, the power of a court to dismiss a suit or to grant a nonsuit for want of prosecution is generally recognized by the decisions of the courts to be inherent and to exist independently of statute or to exist independently of rule of court. While statutes or rules of court providing for the dismissal of actions for want of prosecution have been adopted in a number of jurisdictions, such statutes or rules must be read in the light of the existence of such inherent power, which remains unimpaired unless it is limited expressly or by necessary implication. Thus, it has been held that the affirmative expression of a statute providing for dismissal does not deprive the court of its inherent powers. ...”