(dissenting) — More than a year elapsed between February 4, 1958 — the date the “cause [was] continued subject to call” — and April 9, 1959 — the date defendant moved to dismiss the action for want of prosecution, pursuant to Rule of Pleading, Practice and Procedure 3, RCW Vol. 0. (Renumbered Rule of Pleading, Practice and Procedure 41.04W, 54 Wn. (2d) lvii.)
During this period, defendant took no action that caused “the failure to bring the same on for trial.”
Based upon the fact that “the cause was continued sub*120ject to call pursuant to the agreement of the parties,” the majority opinion concludes that Rule 3 does not apply because of this court’s pronouncement in State ex rel. Seattle v. Superior Court, 6 Wn. (2d) 540, 108 P. (2d) 342 (1940).
“The procedural term, ‘subject to call,’ as used by the trial court, is not defined in the special rules of the superior court for King county, nor is the procedure outlined which thereafter should be invoked. In order to determine the subsequent procedure, the words used must be given their usual and ordinary meaning. ‘Subject to call’ ordinarily means that either of the interested parties can, by a proper motion addressed to the trial court, request that the cause be called for trial on a day certain. Likewise, the term would ordinarily mean that the trial court, in order to clear its calendar of pending litigation, could notify the counsel of record that it was calling the case for trial and arrange a trial date.” MacKay v. MacKay, 55 Wn. (2d) 344, 347 P. (2d) 1062 (1959).
We have held, heretofore, that the court’s opinion in the Seattle case, supra, must be interpreted in the light of the facts before the court. We said:
“If lifted from its factual setting, the conclusion can be drawn from it that once a defendant consents that an action need not be noted for trial within a year, he is thereafter foreclosed from raising the question. Such interpretation would pervert the reason and purpose of Rule 3. However, when reference is made to the facts, it is apparent that the waiver refers and applies to the time accruing prior to the stipulation. This period of time having been waived by the stipulation, it could not be used in computing the time requirement of Rule 3. The waiver was made by the movant. Hence, failure to bring the case on for trial or hearing, within a year from date of issue, was caused by the party making the motion to dismiss.
"...
“Thus the consent to strike the case from the trial calendar waived the use of the period accruing prior to the stipulation and started the time running anew from the date of the stipulation. ...” (Italics mine.) State ex rel. Washington Water Power Co. v. Superior Court, 41 Wn. (2d) 484, 493, 250 P. (2d) 536 (1952).
I cannot appreciate any difference between (1) agreeing that the case may be stricken from the trial docket and (2) *121agreeing that the trial may be placed in abeyance and held “subject to call.”
In State ex rel. Heyes v. Superior Court, 12 Wn. (2d) 430, 121 P. (2d) 960 (1942), issue was joined March 23, 1940. The case was set for trial on December 11, 1940; however, on December 6, 1940, the trial was vacated “by an order approved by both parties.” (Italics mine.) December 18, 1941, defendant filed a motion to dismiss the action on the ground that it had not been brought on for trial within the time required by Rule 3. No proceedings occurred in the case between December 6, 1940 (the date the trial was vacated by agreement), and December 18, 1941 (the date of the motion to dismiss). This court said, on page 433:
“ . . . As appears in the return of the court, more than one year elapsed between December 6, 1940, when an order was entered vacating the previous assignment for trial, and December 18, 1941, when the motion to dismiss for want of prosecution was filed. When the time fixed by Rule III has expired, it becomes the mandatory duty of the court, as a matter of law, to dismiss the action. [Citing authorities.]”
Thus, the court dated time under Rule 3 from the date of the agreement between the parties that vacated the setting.
To my mind, placing the trial of a case “subject to call” neither removes the case from the operation of Rule 3, subsequent to this designation, nor shifts the burden of going forward to the defendant. We said in State ex rel. Philips v. Hall, 6 Wn. (2d) 531, 537, 108 P. (2d) 339 (1940):
“ . . . a defendant is under no obligation to speed the trial, and cannot be charged with neglect if he maintains his position on the defensive, and simply meets issues of law or of fact as the plaintiff regularly calls them up for hearing. ...”
Both counsel agreed that the trial might be placed “subject to call.” We held in State ex rel. Washington Water Power Co. v. Superior Court, 41 Wn. (2d) 484, 250 P. (2d) 536 (1952), that an agreement only prevents the use of time prior to it in computing time under Rule 3.
*122In the instant case, more than a year elapsed between the time the case was made “subject to call” and the motion was made to dismiss for want of prosecution.
The obligation of going forward to escape the operation of the rule always belongs to the plaintiff, not to the defendant. State ex rel. Washington Water Power Co., supra, p. 489, and cases cited.
I would issue the writ of mandamus.
Mallery, Hill, and Donworth, JJ., concur with Weaver, C. J.