Chapman v. Hill
162 N.W. 931
S.D.
1917
Check Treatment
WH'ITING, J.

Section 465, C. C. P., provides:

“In every case in error, or on appeal, in which the supreme court shall order a new trial, or further proceedings in the court below, the record shall be transmitted to such court, and proceedings had 'therein within one year from' the date of such order in the supreme court, or in default thereof, the action shall be dismissed, unless upon good cause shown, the court shall otherwise order.”

A judgment of this court granting a new trial to plaintiff was rendered herein in 1911. Chapman v. Greene, 27 S. D. 178, 130 N. W. 30. If anything at all was done within the year after the judgment of the court, it was hut the placing of .the cause upon what was known a9 the “special or disqualified” calendar of the trial court. This was done partly at request of plaintiff and partly because the judge of the particular court, Judge McGee, who had twice tried same, did not desire toi again -try the cause. Hive years elapsed without any further action on plaintiffs part. Defendant then moved the dismissal of the cause. A judge from 'another circuit heard and passed upon such motion. It is from the order overruling sufch motion that this appeal was taken.

[1] A motion was necessary, as mere failure to proceed does net operate to dismiss the action. Rex Buggy Co. v. Dinneen, 28 S. D. 640, 134 N. W. 814. Two questions may arise upon such a motion: (1) Were “proceedings” taken within a year? (2) If not, was “good cause shown” exlcusing such failure? There being, upon the record before us, no dispute regarding what, if anything, was done within the year, we 'have as the first question for our determination, one purely of law.

[2] Without directly holding that the placing of the cause upon the “special” calendar was a “proceeding” under the statute, the trial court held that, when it was thus placed' upon such calendar, it caime under the ruling of this court in Rex Buggy Go. v. Dinneen, supra, and that, after it went upon such “special” calendar, “the failure to have it tried within the year was the fault of Judge McGee, and not the plaintiff, a® Judge McGee, and, no one else, could properly call in a judge to try the case.” We are of 'the opinion' that if Judge McGee w¡as in any wise at fault for the delay that occurred after the expiration of the year, such *60fault can avail plaintiff nothing, as she had already forfeited her right to maintain such action.

[3] W'e deem it too clear to be open to argument that the "proceedings” which the statute directs shall take place within the year are the proceedings contemplated by the decision of tiffs court, which, in the case before .us., was a new trial. While there might have been some preliminary, matters, such as placing the cause upon the calendar, which in the regular course of events had to precede such trial, they constituted mó part of the “proceedings” contemplated! by such statute. Unless there was some good cause excusing the bringing of the cause to trial within the year, the plaintiff, at the .penalty of a dismissal of her action, was 'bound to see that it was so ¡brought on. Plaintiff made no move to 'bring this cause to trial within the year. The only thing she did was to use her influence in getting this cause put upon such “special or disqualified calendar.” There is absolutely no evidence and no finding- of tiie circuit court that even this step was taken prior to the expiration of the year, and the burden was on, plaintiff to show “proceedings” within the year or else “good cause” for delay. This court takes judicial notice of the terms of circuit court fixed by statute for tire several counties of the state. The remittitur from this court was filed in the circuit court April 18, 1911. The first term of the trial court fixed by •statute -to commence later tiran the judgment of tiffs court was one to commence on the first Tuesday of November of that year. By statute going into effect July 1, 1911, the next term would commence in May, 1912. There is absolutely no evidence that even itibe step of putting tiffs cause upon the “special” calendar occurred! prior .to the May, 1912, term. It follows that the record herein shows beyond dispute itlbat no new ¡trial was had within the year, 'and that plaintiff 'absolutely failed to show any cause, good' or bads, 'for not attempting to bring the action on for trial at the November, 19,11, term. Knowing for at least four months that the November term was the last one to be held within the year fixed' by section 465, C. C. P., plaintiff was bound1 to act in accordance with such knowledge. As there was nothing upon which tire lower court could base an exercise of discretion in passing upon tiffs motion., its ruling refusing the motion was an error of law.

*61In tíre light of the views above expressed, it becomes unnecessary for us to consider what did or did1 not occur after the expiration- -of the year.

The order appealed1 from is reversed.