(dissenting) — A cause may not be dismissed under the provisions of Rule 3, if the failure to note the issue of fact or law was caused by the movant. State ex rel. Washington Water Power Co. v. Superior Court, 41 Wn. (2d) 484, 250 P. (2d) 536. In my view, appellant’s failure to note the demurrer and motion of October 29, 1953, was caused by respondent, and such failure therefore provides no ground for dismissal of this case.
On November 2, 1953, hearing was had on appellant’s motion for default. The minute entry made that day by the clerk of the judge who conducted this hearing reads as follows: “Motion for Default — Denied. Motion to Strike— Not Argued. Demurrer — Overruled.”
On November 9,1953, a form of order denying this motion of default was presented to the court. As originally prepared, this form of order contained the following provision: “ . . . and that the defendant be given 10 days in which to answer the complaint of plaintiff.” The court, however, struck the words “answer the complaint of plaintiff,” and inserted in lieu thereof, “plead further.”
*456This order placed upon respondent the duty of making the next move. He was ordered to “plead further.” The court would not have required respondent to plead further if it had regarded the original demurrer and motion to strike as still pending.
We do not know why the court disregarded the original demurrer and motion. It may have thought that these pleadings had been disposed of at the hearing on November 2, 1953 (see the minute entry quoted above). Another possible explanation for the order requiring appellant to “plead further” is that the original demurrer and motion may have been considered premature. Appellant’s motion for default was pending and had been noted for hearing before respondent served and filed its demurrer and motion to strike.
But, whatever the reason, and whether or not meritorious, it is plain to me that the command, “plead further,” implies that there was no pending pleading; that issue had not, to use the term found in Rule 3, been “joined”; and that issue would not be “joined” until such further pleading had been filed.
That respondent so construed the order is indicated by the fact that it promptly, on November 18, 1953, refiled its demurrer and motion. Respondent’s construction of the November 9, 1953, order is-also indicated in the affidavit of its counsel, dated November 6,1954, in which it is recited:
“. . . Judge Hodson signed and entered his formal order herein, specifically giving defendant ten days to plead further, and ruling, oraUy, that such pleading should include all proper motions hy defendant against plaintiff’s complaint.
“Within ten days of the entry of said order, and on November 16, 1953, defendant served on plaintiff’s counsel, by mailing, copies of defendant’s theretofore filed Demurrer and Motion to Strike in the above case, and advised plaintiff’s counsel that the originals thereof were being refiled in this action. The Demurrer and Motion to Strike were refiled in this Court November 18, 1953, within ten days of the court’s order above mentioned ...” (Italics mine.)
The real reason the motion to dismiss for want of prosecution was granted is that the trial judge thought the order *457of November 9, 1953 (issued by another judge), requiring respondent to plead further, had been erroneously entered and should be disregarded. This is revealed by the comments made by the trial judge during the argument on the motion for reconsideration.
When attention was called to the order of November 9, 1953, requiring respondent to plead further, the court said: “Why did the Court order it? Why would the Court do that? What was the Court doing — .” Later in the argument, referring to the same order, the trial judge said: “I don’t think he had jurisdiction to do that.” Then, indicating that he would, in effect, set aside the order of November 9, 1953, the judge, in his memorandum opinion of January 24, 1955, stated: “ . . . The refiling of the motion and demurrer was unnecessary because they were then in the file and could and should have been noted for hearing.”
In my view, no party, in calculating the time limit prescribed by Rule 3, should be required to assume the risk that an order requiring the opposing party to plead further will be set aside as erroneous by another judge, after the one-year period has expired, especially where, as here, the opposing party has not contested the earlier order but has complied therewith. The injustice of such a result is compounded where, as here, the statute of limitations has run on appellant’s cause of action.
It is true that appellant regarded the second demurrer and motion as á nullity. This is established by the fact that he thereafter moved for default. But this was in no sense a recognition by appellant that the first demurrer and motion to strike were still pending. Appellant’s second motion for default was grounded on the proposition that the second demurrer and the motion to strike were not the kind of pleadings referred to in the order of November 9, 1953.
Having itself construed the order of November 9, 1953, as requiring refiling of the demurrer and motion, and having complied with the order as so construed, respondent *458performed a positive act which, in my opinion, started running again the time limit fixed by Rule 3.
Rosellini, J., concurs with Hamley, C. J.May 9, 1956. Petition for rehearing denied.