REFUND

FEES ‑- JURY ‑- CASE SETTLED OUT OF COURT ‑- REFUND

Where demand has been made by a litigant for a jury trial in a civil action, and the jury fee required by RCW 36.18.020 has been paid, and thereafter the case is settled out of court and the court is notified of such settlement by an attorney for one of the litigants not less than twenty-four hours prior to the time that such case was scheduled to be called to be heard, the jury fee may be refunded.

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                                                                  January 8, 1973

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington 98823                                                                                                                 Cite as:  AGLO 1973 No. 4

Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:
 
            Where demand has been made by a litigant for a jury trial in a civil action, and the jury fee required by RCW 36.18.020 has been paid, and thereafter the case is settled out of court and the court is notified of such settlement by an attorney for one of the litigants not less than twenty-four hours prior to the time that such case was scheduled to be called to be heard, may the jury fee be refunded?
 
            We answer this question in the affirmative.
 
                                                                     ANALYSIS
 
            The governing statute with respect to your question is RCW 36.18.020.  As most recently amended by § 5, chapter 57, Laws of 1972, Ex. Sess., this statute provides as follows:
 
            "Clerks of superior courts shall collect the following fees for their official services:
 
            ". . .
 
            "(5) The party filing a demand for jury of six in a civil action, shall pay, at the time of filing, a fee of ((fifty)) twenty-five dollars ((,and)) ; if the demand is for a jury of twelve the fee shall be fifty dollars.  If, after a  [[Orig. Op. Page 2]] party files a demand for a jury of six and pays the required fee, any other party to the action requests a jury of twelve, an additional twenty-five dollar fee will be required of the party demanding the increased number of jurors.  In the event that the case is settled out of court and the court is notified not less than twenty-four hours prior to the time that such case is called to be heard upon trial, such fee shall be returned to such party by the clerk."
 
            This statute, as amended, clearly provides for a refunding of the jury fee under the circumstances set forth in your question, as above paraphrased.  You have, however, pointed out to us the following apparently conflicting provisions of Rule 38 (e) of the Civil Rules for Superior Courts:
 
            "Whenever a case has been set for trial with a jury and the jury fee deposit has been made and such case is settled out of court prior to the time that it is called to be heard upon trial, such jury deposit shall not be returned to the party depositing the same unless the court is notified of the settlement of the case not less than 3 days before the trial date."  (Emphasis supplied)
 
            This rule of procedure was adopted by the Washington supreme court on May 5, 1967, and became effective on July 1 of that year.  In adopting it the court, presumably, was relying upon the authority granted to it by RCW 2.04.190 (enacted as § 1, chapter 118, Laws of 1925, Ex. Sess., which provides that:
 
            "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  [[Orig. Op. Page 3]] 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.  . . ."
 
            If this civil rule of procedure were to have been adopted by the supreme court subsequent to the above‑quoted 1972 amendment to RCW 36.18.020, then, to the extent of any conflict between it and this statute, the rule would take precedence.  See, RCW 2.04.200, codifying § 2, chapter 118, Laws of 1925, Ex. Sess., supra, which states 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."
 
            Accord, State ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1, 267 Pac. 770 (1928); see also, O'Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969); State v. Williams, 156 Wash. 6, 286 Pac. 65 (1930); State v. Pavelich, 150 Wash. 411, 273 Pac. 182 (1928); and Nicktovich v. Olympic Motor Transit Co., 148 Wash. 410, 269 Pac. 337 (1928).  In this case, however, the conflicting legislation was not in existence when the rule of procedure was promulgated, and therefore, in our opinion, until the supreme court acts again to supersede the 1972 legislative amendment to RCW 36.18.020, supra, this statute must be regarded as being fully effective.
 
            On this basis, we answer your question, as above paraphrased, in the affirmative.
 
Very truly yours,
 
SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General