53 Wn.2d 833, EDWARD W. FRANKS, Plaintiff, v. THOMAS E. DOUGLAS, et al., Defendants and Relators, THE SUPERIOR COURT FOR KING COUNTY, Donald L. Gaines, Judge, Respondent

[No. 35059. Department Two.      Supreme Court      April 2, 1959.]

EDWARD W. FRANKS, Plaintiff, v. THOMAS E. DOUGLAS, et al., Defendants
           and Relators, THE SUPERIOR COURT FOR KING COUNTY,
                Donald L. Gaines, Judge, Respondent.1

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.

PER CURIAM. -

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.