— This cause is here upon the petition of the defendant for a writ of mandamus to compel the trial court to dismiss the cause under Rule of Pleading, Practice and Procedure 3, 34A Wn. (2d) 69.
*118After issue was joined, this tort action was noted for the trial calendar and thereafter set to be tried on February 5, 1958. On February 4, 1958, there is a minute entry reciting “Cause continued subject to call.” On April 7, 1959, plaintiff moved “ . . . that the above entitled cause, now carried on the trial calendar continued subject to call, be brought on before the Presiding Judge for setting of a trial date.”
Two days thereafter, April 9, 1959, the defendant moved to dismiss for want of prosecution under Rule 3, supra. This motion was denied. In a memorandum opinion, the trial court gave the following reasons for its refusal to dismiss:
“It is the local practice of the King County Superior Court to allow a continuance of a case subject to call only by agreement of counsel for both plaintiffs and defendants. When a case is so continued, it is not stricken from the trial docket but carried there until another trial date is assigned. Normally the new date is set by agreement of counsel for both sides making their selection from available trial dates. If counsel are unable to agree on a new trial date, the case may be ‘called’ by counsel for either side conferring with the presiding judge or by motion such as that of the plaintiff in the instant case. Since the case is carried on the trial docket, it is the opinion of this Court that a further note for the trial docket is not appropriate nor is it required because both counsel have agreed to the above procedure.
“It is the opinion of this court that the instant case does not fall within the mandatory provisions of Rule 3 of Pleading, Practice and Procedure, and further that that portion of defendant’s motion directed to the court’s discretion should be denied. Therefore, the defendant’s motion should be denied and the plaintiff’s motion granted.”
Rule of Pleading, Practice and Procedure 3, supra, is as follows:
“Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff or cross-complainant shall neglect 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 *119motion to dismiss. Such motion to dismiss shall come on for hearing only after notice to the adverse party.”
The parties admit that, on the day before the trial date, the cause was continued subject to call and that this was done pursuant to agreement.
The decisions are clear that in cases within the purview of Rule 3, supra, no element of discretion is involved, and the cause must be dismissed.
However, this case is not clearly within the terms of the rule. No further note for the motion docket was required. RCW 4.44.020 provides in part as follows:
“When a cause has once been placed upon either docket of the court, if not tried or argued at the time for which notice was given, it need not be noticed for a subsequent session or day, but shall remain upon the docket from session to session or from law day to law day until final disposition or stricken off by the court. . . . ”
State ex rel. Seattle v. Superior Court, 6 Wn. (2d) 540, 108 P. (2d) 342, held that the rule does not apply if there is a stipulation that the cause need not be noticed for trial within the year. It is apparent from the remarks of the trial judge and the written and oral arguments of the parties that the cause was continued subject to call pursuant to the agreement of the parties. It is not clearly within the mandatory provisions of the rule, which should be strictly construed instead of being extended by construction, and the writ is, therefore, denied.
Finley, Rosellini, Ott, and Hunter, JJ., concur.