96 P. 278 | Cal. | 1908
This is an appeal by plaintiff from an order dismissing his motion for a new trial.
The action was brought to quiet title to a tract of land in the county of Santa Cruz, in which judgment was rendered in favor of the defendants and against plaintiff. In due time and on May 18, 1905, plaintiff gave notice of intention to move for a new trial. Thereafter, on June 1, 1905, his counsel served on the attorney for defendants what purported to be a statement in support of said motion. On the thirty-first day of August thereafter, defendants prepared and served upon plaintiff their proposed amendments to such statement, subject to objections interposed and saved therein against the settlement of said statement on the ground that it was a mere skeleton statement, inaccurate and incorrect in every material particular, and that it was sham and not prepared or proposed in good faith. Thereafter, defendants gave notice of a motion to dismiss plaintiff's motion for a new trial on the same grounds urged against the settlement of the statement. This motion came on to be heard on September 9, 1905, and was by the court denied. Subsequently, and on December 29, 1905, defendants again gave notice of motion to dismiss said motion for a new trial, to be heard January 2, 1906, and among other grounds, upon the ground that the plaintiff had failed to prosecute his motion for a new trial with due diligence. The matter was presented and heard upon affidavits of the *675 respective attorneys in the action and the proceedings in the cause, and after due consideration was granted by the trial court, and plaintiff appeals.
It is insisted by the appellant that the court abused its discretion in granting the motion to dismiss.
In Galbraith v. Lowe,
It is claimed by plaintiff that at the time the notice was given of the motion to dismiss, the court had already fixed the 3d of January, 1906, as the date for the settling of the statement. While it appears from the affidavit of plaintiff that the court had fixed that date for the settlement, there is nothing to show that the order fixing it was made prior to the filing of the notice of the motion to dismiss the motion for a new trial, or that that time was fixed by consent of the parties. In the absence of such showing no presumption is to be indulged that the order fixing the date of the settlement was made prior to the filing of the notice of motion to dismiss. All that appears is that there was a day fixed by the court for the hearing of the statement, which was subsequent to the filing of the notice of motion to dismiss and the date fixed for hearing such motion. The right of the defendants to have the motion for a new trial dismissed on account of failure to prosecute it diligently by having the statement settled could not be affected by the action of the court of its own volition or by the ex parte application of the attorney for the plaintiff in fixing a day for the settlement. If there was inexcusable delay on the part of plaintiff the defendants had a right to move to dismiss for that reason, and the action of the court in fixing a day for settlement could in no respect interfere with that right.
The order appealed from is affirmed.
Henshaw, J., and McFarland, J., concurred.
Hearing in Bank denied. *677