142 N.W. 42 | N.D. | 1913
The record facts decisive of all three of the above-entitled actions are practically identical ' Judgment in each has been awarded against defendant after denial of a motion to dismiss made and based upon the provisions of § 6999, Eev. Codes 1905, providing for the dismissal where the action is not brought to trial or to final determination within five years from its commencement. Plaintiff has brought three actions against defendant upon three different causes of action, with complaints verified respectively September 21, 1901, October 9, 1901, and October 4, 1902, all of which were instituted by attorneys Gordon & Lamb, formerly of Langdon, North Dakota, both of whom are since deceased. Within the thirty-day period answer was served; and note of issue was filed in the first two cases in October, 1901, and in the last in November, 1902. Affidavits of prejudice against the trial judge, and bonds for expenses, were filed in all three actions by the plaintiff on November 11, 1902. The causes remained untried, with no action taken by either party, plaintiff or defendant, and no steps taken whatever, except that other attorneys for plaintiff were substituted during the interim, until December 16, 1907, more than five years after said actions had been placed upon the calendar, and more than that period after the filing of the affidavits of prejudice against the trial judge of that district. On December 16, 1907, defendant filed motions to dismiss, which were heard by the judge of another district there presiding. The motions were based upon the record and supporting affidavits of defendant and his attorney, to the effect that “the
Since the trial court made the order in these cases on December 16, 1907, this court, in Lambert v. Brown, 22 N. D. 107, 132 N. W. 781, has had occasion to construe and apply § 6999, Bev. Codes 1905. It was there said that by operation of this statute “failure for five years after the commencement of an action to bring the same to trial creates a presumption of unreasonable negligence on the part of the plaintiff, entitling defendants to a dismissal of the action unless good cause for the delay be shown.” And we there held that an order dismissing an action six years old was properly entered. The trial court, as is apparent from a portion of the order of dismissal above quoted, considered that the fact that an affidavit of prejudice against the presiding judge had been on file for more than five years was sufficient to exonerate plaintiff from neglect, under a presumption indulged that the regular presiding judge had been unable to procure an outside judge to try the causes. It may be that it will be presumed that said judge, upon the filing of the affidavits of prejudice, complied with the statute,
Under these facts, then, no excuse appears why the failure to bring this case on for trial, within the period since its commencement exceeding five years, is not neglect within the terms of the statute. There was, then, no ground for the denial of the motion made.
But plaintiff avers that the denial was discretionary and should not be reversed except for an abuse of discretion. Under the facts shown there was no discretion vested in the trial court, as there were no facts brought before it upon which it could use discretion. The only determination to be made was whether a ease coming within the explie
Neither the trial court, nor this court, has any alternative other than to apply the statute to this case, so plainly within its terms. As the motion should have been granted and the order of dismissal entered, plaintiff having been entitled thereto by right, it follows that the judgment thereafter entered should be set aside and vacated, and the action dismissed, and it is so ordered. The same order will be entered in each of these three entitled actions.