58 Ind. App. 378 | Ind. Ct. App. | 1914
This is a companion ease to Hornaday v. Cowgill (1913), 54 Ind. App. 631, 101 N. E. 1030. The only question brought before us in the present ease is the action of the trial court in dismissing the case, upon appellees’ motion, for want of prosecution, and in refusing, upon appellant’s motion, to reinstate the case.
The complaint was filed on July 7, 1909. On September 15, 1910, appellees filed demurrers to the complaint. On January 15, 1912, the issues not having been advanced, and no steps having been taken by appellant to advance the issues in the cause, appellees made a motion to dismiss the cause, under Rule 5 of the Wabash Circuit Court, which provides: ‘ ‘ Causes that have stood two previous terms without being advanced, will be dismissed on call, unless at that time some reason supported by affidavit, be shown to the contrary.” Affidavits were filed against this motion, and other affidavits, in support of it. After the motion to dismiss had been sustained, appellant made a motion to reinstate the cause, affidavits' were filed on both sides as before, the question argued, and the motion overruled. Appellant’s motion for new trial was also overruled.
Note.—Reported in 106 N. E. 376. As to when compulsory non-suit should be granted, see 24 Am. Dec. 620. See, also, under (1) 14 Cyc. 446; 14 Cyc. 1913 Anno. 448-new; (2) 3 Cyc. 1913 Anno. 340-new; 3 Cyc. 366.