Letter Opinion 1970 No. 105

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                                                                    July 31, 1970
 
 
 
Honorable Lincoln E. Shropshire
Prosecuting Attorney
Yakima County Court House
Yakima, Washington 98901
                                                                                                             Cite as:  AGLO 1970 No. 105
 
 
Dear Sir:
 
            This is written in your response to your recent letter requesting our opinion on a question pertaining to an apparent conflict between RCW 59.12.170 and CR 62A.  We paraphrase your question as follows:
 
            Does RCW 59.12.170, relating to judgements in actions for unlawful detainer, continue to authorize the immediate enforcement of such judgements under certain circumstances prescribed therein, or has the portion of this statute which so provides been rendered of no force and effect by virtue of the state supreme court's adoption of CR 62A?
 
                                                                     ANALYSIS
 
            RCW 59.12.170 codifies the provisions of § 18, chapter 96, Laws of 1891.  It provides, in full, as follows:
 
            "If upon the trial the verdict of the jury or, if the case be tried without a jury, the finding of the court be in favor of the plaintiff and against the defendant, judgement shall be entered for the restitution of the premises; and if the proceeding be for unlawful detainer after neglect or failure to perform any condition or covenant of a lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of the lease, agreement or tenancy.  The jury, or the court, if the proceedings be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, alleged in the complaint and proved on the trial, and, if the alleged unlawful detainer be after default in the payment of rent, find the amount of any rent due, and the judgment shall be rendered against the defendant guilty of the forcible entry, forcible detainer  [[Orig. Op. Page 2]] or unlawful detainer for twice the amount of damages thus assessed and of the rent, if any, found due.  When the proceeding is for an unlawful detainer after default in the payment of rent, and the lease or agreement under which the rent is payable has not by its terms expired, execution upon the judgement shall not be issued until the expiration of five days after the entry of the judgment, within which time the tenant or any subtenant, or any mortgagee of the term, or other party interested in its continuance, may pay into court for the landlord the amount of the judgment and costs, and thereupon the judgment shall be satisfied and the tenant restored to his estate; but if payment, as herein provided, be not made within five days the judgment may be enforced for its full amount and for the possession of the premises.  In all other cases the judgment may be enforced immediately.  If writ of restitution shall have been executed prior to judgment no further writ or execution for the premises shall be required."  (Emphasis supplied.)
 
            CR 62A, however, states in material part as follows:
 
            "No execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 5 days after its entry.  . . ."
 
            As indicated in AGO 1967 No. 29 [[to Prosecuting Attorney, Chelan County on August 9, 1967]], copy enclosed, a "judgment" within the meaning of this rule refers to a judgment of a superior court.  See, CR 1, which describes the scope of the civil rules for superior court as follows:
 
            "These rules govern the procedure in the superior court in all suits of a civil nature whether cognizable as cases at law or in equity with the exceptions stated in Rule 81.  They shall be construed to secure the just, speedy, and inexpensive determination of every action."
 
            However, this factor is of no assistance to us in attempting to reconcile the apparent conflict between the above emphasized portion of RCW 59.12.170 and the provisions of CR 62A, supra, for it is clear that, under RCW 59.12.050, a judgment for restitution entered under RCW 59.12.170 is, jurisdictionally, a superior court judgment.
 
            CR 62A was promulgated by the supreme court on May 5, 1967, and it became effective on July 1, 1967.  It was adopted by the supreme court under the authority granted to it  [[Orig. Op. Page 3]] by RCW 2.04.190, which provides as follows:
 
            "The supreme court shall have the power to prescribe, from time to time, the forms of writs and all other process, the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving writs and process of all kinds; of taking and obtaining evidence; of drawing up, entering and enrolling orders and judgments; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the supreme court, superior courts and justices of the peace of the state.  In prescribing such rules the supreme court shall have regard to the simplification of the system of pleading, practice and procedure in said courts to promote the speedy determination of litigation on the merits."
 
            On the other hand, of course, we have already seen that RCW 59.12.170 codifies a statute which was enacted many years earlier, by the 1891 session of our state legislature.  This leads us, then, to the legislature's own mandate as to the impact upon its enactments of rules of procedure later promulgated by the supreme court under the authority granted to it by RCW 2.04.190, supra.  This statutory provision was enacted as § 1, chapter 118, Laws of 1925, Ex. Sess., and by the very next section of this same act (now codified as RCW 2.04.200) the legislature specifically provided that:
 
            "When and as the rules of courts herein authorized shall be promulgated all laws in conflict therewith shall be and become of no further force or effect."
 
            Based upon this statutory provision, and in view of our inability to reconcile the obvious conflict between so much of RCW 59.12.170, supra, as provides for the immediate enforcement of certain judgments for restitution (on the one hand) and so much of CR 62A, supra, as defers any enforcement proceedings pertaining to superior court judgments until the expiration of five days after their entry (on the other), we feel compelled to conclude that  [[Orig. Op. Page 4]] the rule must be regarded as having taken precedence over the statute ‑ therby rendering the inconsistent provisions of RCW 59.12.170, supra, of ". . . no further force or effect."
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General