*1 employer been properly notified.8 On this
issuе we hold proof that such overcomes any presumption prejudice, and that in
this case Mr. Neufeld has met his burden proof.
For the foregoing reasons we reverse the
Industrial Commissionand remand the case
back to it for proceedings further consist-
ent with opinion. appellant. Costs to
Kenneth dba Trout Farms, Inc., Plaintiff-Appellant,
v. COMPANY,
TWIN FALLS CANAL
Defendant-Respondent.
No. 15820.
Supreme Court of Idaho.
Dec.
Stephen Beane, Boise, W. plaintiff- appellant. Slette, Nelson, Rosholt,
Gary D. Robert- son, Tucker, Tolman Falls, & Twin for de- fendant-respondent.
SHEPARD, Justice. years ago,
Some seven and one-half
defendant-respondent’s canal
allegedly collapsed, damaging plain-
bank
tiff-appellant’s fish farm and stock. The
testimony
expert
competent
8. When
on this issue is contro-
then based on substantial and
evi-
verted,
dence,
Callantine,
responsibili-
supra;
it will be the Commission’s
it
will
affirmed.
ty
testimony
Hamby
Simplot,
to decide which
is more credible.
94 Idaho
911 The record reflects that counsel for filed 1978. In complaint was in October of present hearing partic at the and Ellis was the dismissed. October 1984 action was argument upon in the the motion to ipated pro- During following time interval the that he Although noted therein that he dismiss. ceedings place. complaint The was took five-day notice of the had not received the 1979, in and defendant answer- served being hearing, he made assertion 1980, days ed later. In March de- seven thereby and did not move for a prejudiced interrogatories to filed addressed fendant hearing date. “The vol continuance the 1981, July In Ellis a clerk’s Ellis. received attorney untary by an and appearance his and an notice of dismissal of the action argument in of a participation the motion is the why wаs filed as to case affidavit waiver of notice of the motion.” B.J. a be retained. The trial was sched- should Carney 376, Murphy, Co. v. & 68 Idaho 1981, upon uled November but vacated 381, 339, (1948). also See 195 P.2d 341 1982, stipulation. Trial reset in March was 416, Walling, v. 2 Pac. 54 Curtis Idaho 18 upon stipulation Ellis had but vacated since petition Chapter 11 the a under Lathan, Ida The Court Warden v. in 96 following Bankruptcy July, Act. notice 34, 162, (1974), 35, stated: 524 P.2d 163 ho thereof, action and Ellis’ was dismissed jurisdiction “It is well settled in this to set aside that of dismissal motion order authority to that the trial court has granted September in On was June a failure to dismiss a case because of 1, 1984, following telephone con- a status prosecute, and the trial court’s exer- that ference, judge the district a in set date authority be dis- cise of such will not pretrial a November for conference and a appeal unless it is shown that turbed on date, approximately two weeks later a of discretion. there was manifest abuse setting. It trial was ordered therein that (Citations omitted). discovery all completed by be the date of “We are mindful that all conference, pretrial proposed that ex- might case not be attributable exchanged hibits and witness lists be at However, solely appellants. ‘... a to pretrial least a week advance of the plaintiff who hails a defendant into conference, pretrial and that a memoran- assumes, long af- and so as he has the specified 16(a) dum as in Rule submitted issue, main retains the firmative of the pretrial day at least one advance of ” diligent duty prosecution.’ Ellis never conference. had filed answers Acres, also Kirkham v. See 100 Idaho 4.60 1980, interrogatories of March 41(b). (1980); 781, P.2d 959 I.R.C.P. 605 compel Falls to answers Twin Canal moved 28, interrogatories, to and October those stay argues Ellis that the automatic 1984, to for fail- moved dismiss action provide an provisions of 11 362 U.S.C. § prosecute, or in the alternative ure to to advance for the failure of Ellis excuse 1984, the trial date. On October vacate disagree. In the instant сase the case. We Falls motion heard Twin Canal’s debtor, the court against was Ellis as a the action not interrogatories. On compel answers to stay provisions do and hence the automatic interrogatories were apply. Meyer Fleming, v. that date answers 327 U.S. mo- (1946); Ellis. Twin Falls Canal’s delivered 595 11 90 L.Ed. S.Ct. date, argued 323(b). same dismiss was that tion to U.S.C. § thereof action the conclusion and at involuntary dis Ellis asserts dismissed. was 41(b) is an extreme missal under I.R.C.P. sanction, the motion to dis- avail argues that that other sanctions were Ellis first punitive, hence it erroneously granted since were less which was able miss upon Ellis least of discretion the trial at an abuse not served was motion Court, Jensen hearing disagree. in com- court. We days in advance of five P.2d Doherty, 6(d). 101 Idaho We do not I.R.C.P. pliance with (1981), 1287, stated: agree. “Involuntary BISTLINE, dismissal Justice, under I.R.C.P. concurring part 41(b) for failure prosecute is in the dissenting part. nature of necessary sanction. It is a January On Honorable Ther- final recourse available to the Court to on Ward W. retired from term of protect processes litigants its and other judge as a service of the Fifth Judicial from remedy spar- abuse. It is a to be *3 District. He was in office when Kenneth used, ingly but it is always available. Ellis, action, plaintiff in this retained coun- (Citations omitted). sel against and commenced this action the “We have held granting of an сompany in September canal of 1978 seek- involuntary ground dismissal on this is damages ing flooding for the 1978 of an act within the sound of discretion the property allegedly negli- his caused the court, trial and imposition that of the gence of company. Apparently the canal sanction will stand absent abuse that par- there had been discussion between the discretion.” results, produced ties had which as not- pointed We any are not Ellis to clear ed the fact canal company the abuse of discretion of the trial in the appeared through voluntarily counsel. All instant At case. the time of the dismissal then counsel involved were local to the pending years, the action had been six Judge presided Fifth District Bar. Ward in up and to the date of the dismissal Ellis proceedings all in the until his retire- case diligently prosecute case, had failed to the ment. any discovery, comply initiate or with proceeding Judge last which Ward . discovery the efforts of Twin Falls Canal. presided prior over to his retirement was present We note that counsel for Ellis did plaintiff’s motion to set aside a court appear case until mid-1984. The dismissing default order clerk’s the action lapses time prosecute and Ellis’ failure to July which had been entered in of 1983. beyond the instant case are those in receiving On notice of that dismissal the cases in which Court has affirmed dis responded with motion to set it missals trial court. Jensen v. See aside: Doherty, supra; Acres, Kirkham v. 4.60 Beckman,
supra;
v.
88
Beckman
Idaho
Weaver,
NOW Robert C.
at-
COMES
(1965);
knowledge of the facts stated herein. Bankruptcy yet been filed with the (2) Chapter By plaintiffs reason of the Court, it is not now known whether thereon, proceedings petition appointed or some other trustee will be setting contin- trial on this case has been disposition made of the claim embodied numbеr of times. ued a De- complaint in this case and the (3) Upon receiving notice that the case exposed liability dual may fendant dismissed, I contacted James C. would be proceeds to trial without Val- if the case Tucker, attorney named for the above *4 Inc., Farms, having ley first Trout defendants, agreed stipulate and he Bankruptcy presented the matter to the dismissed, the case would not be but inclusion for consideration and Court stipulation was filed with now written plan. approved an prior to the Court’s order of the Court least, bankruptcy very 4. At the R., 11, 1983, July dismissing the case. indispensible party may is or be an estate 2, pp. 33-34. Vol. litigation, which remains to be to the rеcord, Looking backward into the clerk’s appointed. seen if a trustee is plaintiff’s July of 1981 counsel filed and respective parties for the 5. Counsel stating a Note of Issue that a two- served agreed to the current trial have vacate anticipated, jury had been day trial was appropri- An date in view of the above. requested, pretrial and that a conference stipulation filed with the ate will be necessary. A trial sched- would not be was R., 2, pp. 26-27. Court. Vol. 17, March Five weeks be- uled for 1982. And, trial, represented counsel February on as defendant’s fore defendant happen, stipulation a was plaintiff —not the a motion to vacate the court would —filed R., 2, p. a week later. Vol. setting: trial filed less than stipula- Judge approved the 28. That Ward NOW, Twin Falls COMES Defendant granted the defendant’s motion to tion and Company and Canal moves Court setting plaintiff which had vacate the trial trial for vacate the heretofore scheduled by the court obtained is demonstrated following ground: on the March mailing copies of clerk’s certificate Farms, Inc., Valley 1. Trout has R., 2, p. stipulation parties. Vol. to both petition chapter 11 the Bank- under of stipulation provided: 28. The Act, ruptcy corporate reorganiza- for a counsel for the above COMES NOW tion, “A” attached as shown Exhibit stipulate parties, and referenced part hereto and made a hereof. 17th and presently set for the trial date Bankruptcy Act Chapter 11 of the 2. March, 1982,may vacated day of 18th plan of a of contemplates the submission subsequent time conve- and reset at a and the credi- reorganization to the Court R., the Court. parties for the nient U.S.C., approval. Section tors 2, p. 28. Vol. plan. provides for the contents of ensuing 18 months (b) Apparently, during the 1123 states Subparagraph of Section parties and coun may provide for the settle- a time convenient plan that a clerk, materialized,1 when the not any claim or inter- sel had adjustment or of ment wholly be а performance of what would or to the belonging est to the debtor ailment, may being an readily bothered with that find- will understand 1. Practitioners always apparently readily ing available as is convenient for both is not not have been a time Moreover, my easy majority. in mind that being it runs to find. surmised question Judge Ward at or about the time duty, ministerial entered the Plaintiff, dismissal— counsel Bean, for the Steve re- likely most done without conferring with spective counsel will need a continuation judge knowledge and without or recol- of this conference and the same is set for lection of the contents of stipulation. Friday, R., June 1984. p. Vol. 36. There problem should have been no with May 21, 1984, On Mr. Bеan and former the motion to vacate the clerk’s dismissal. plaintiff counsel signed and filed a No- And, course, there was none. The court tice of Substitution of Counsel. September reflect, minutes of with Generally agree proposition Judge hearing Ward the motion with his judge that a district taking may office reporter present, that: that, decide for himself change as with the The Plaintiff Robert C. Weaver vessel, navy command on a that whatev- the firm Dykas appeared of Weaver & may gone er have notwithstanding, before court, appear per- Defendants did not day we will from this proceed forward son nor counsel and Plaintiff’s coun- go strictly by regulations the rules and sel notified the court that Steven K. Tol- (bridge). this bench On occasions I man had they advised would constantly have advocated that the district argue the Motion to Set Aside Order courts should have far more local autono- Dismissal; whereupon the court my they enjoyed than years. in recent granted the Motion to Set Aside Order of Recently I have seen cause to mention that R., 2, p. Dismissal. Vol. judges district are remaining the last Judge That was Ward’s last involvement in judges state, elected local in the entire *5 time, the assuming case. At that that historically judges the district of Idaho placed delay, has to be the situa- fault highest have been held in the esteem tion “push” wеighed was either a or people they of the districts wherein are plaintiff. favor of It was who had spite elected. It is not in of those beliefs acquired setting. a trial Defendant was I separately today’s majori- that write from moving party who had it vacated. ty because of them. —but my part, For I any see no indication of my years exposure almost 40 to our fault party. attributable to either At the judicial system, I scene, do not recollect of know Judge time of Ward’s exit from the ing, knowing of, or absolutely My judge the slate was district who clean. concern hard, would have come down as majority is with a of this Court and as who precipitately, ample litigant haрpened time to reflect on a on the situation as it as here, Contrariwise, and the Judge my then existed. Hurl- actions do not fit within taking high butt on esteem of the judge. over the case was made district But I aware, probably by this Court’s administra- am not unaware that as a result this director, growing increasing tive that the case was Court’s excursion into the realm Obviously degree, bureaucracy whiskers. to the nth of administrative all of the courts, problem including there had been no as to the case’s “inferior” even our Court antiquity Judge presided. Appeals, prodded while Ward Like into meet have been myself, ing production goals apparently an he was of era that believed whiсh are set, lawyers usually agree approved, by were able to or at To when least this Court. some, may case could and should tried. Times to a more be statistics seem be change. important goal of the Court than well-rea precedential soned decisions.2 18, 1984,
The court minutes of Judge presiding, Hurlbutt state that: It seems clear to me that this Court today affirming
This
time set
for a
does a
was the
district court
counsel,
being
litigant,
conference and there
new disservice both to the
status
My
philosophy
judges
appropriate
has been and continues to
tional
and it is more
own
autonomy
judges
performance
of the district
their
be a concern fоr those who
be
local
They
be foremost.
are elected
elect them.
should
constitu-
sorry.
I am
“THE COURT: That s true.
judges
and to the district courts and
there-
forgot
of as
I
that.
well.
state
As,
states,
might
I
advise the
majority
involuntary
dis-
“MR. TUCKER:
41(b)
ago Mr. Beane
missal under I.R.C.P.
for failure to
court. Just a few moments
recourse,”
interrogatories,
prosecute
gave
is a “final
and one “to
me answers
Jensen,
August of
sparingly
supra,
interrogatories
filed in
used.”
both the
Here,
interrogatories
year
that were
Idaho at
[******] “THE COURT: I do want to consider it very much. coming “THE COURT: The next matter the- court comes on File Number got, before I if the court “MR. TUCKER: Ellis, doing did, advised, Kenneth business as get we did please as —we Farms, Inc., Valley Trout versus Twin interrogatories here this morn- answers to Tucker, Company. Falls Mr. Mr. ing. Unfortunately Canal to inter- those answers questions Beane. rogatories do answer most *6 respect to that we had with some Yes, “MR. Your Honor. TUCKER: used and documents that are to be data Counsel, actually “THE we COURT: prove his case in plaintiff in this case to have this matter set for status conference damage question. respect to the chief with —or, me, pretrial excuse conference. witnesses, Also, it several some lists There has also been filed a motion cases had been witnesses other which or, alternative, an order dismissal in the involving this same flood down Rock Creek vacating the trial date. This matter has also this lists witnesses that Canyon; but set for trial to occur on November been deposed before. in fact have not been two-day court It has been set for a 19th. for several see the need this case “We trial. actu- There hadn’t been depositions. more plain- reflect that the “The record should deposi- there has been no ally actually — by Stephen Beane. represented tiff is here case, please. This if the court tions in this represented is here The defendant We pending since 1978. case has been Tucker. James C. prose- plaintiff duty think it’s duty certainly not the case. It is Tucker, I have сute the your this is motion. “Mr. go forward. defendant to floor. You of the you it. But have the reviewed it. may speak to for trial court set this matter “When the had, I we conference that at the last status If the court “MR. Yes. TUCKER: pre- some court that there was advised the the court is please, I think also before thought had to be discovery we interrogato- liminary compel answers motion to interrogatories file our We did done. ries. August and, course, Yes, received answers “MR. TUCKER: Your I Honor. today. pending think this case has been for such a long period really prosecu- of time with go forward, “If this case is to Your Hon- plaintiff; tion on behalf of the and now or, we need complete additional time to getting information this late when we did discovery. But we think that the case has interrogatories pending since pending been for such a period of time think, certainly, I has—we don’t know until really has received very little attention depositions we take the through plaintiff try to ferret in this case that there with, out just particularly is a basis for the information re- dismiss the point case at this gard damages time. to the alleging that he is as to whether or not we can even find infor- I say, though, “As if the court feels But, goes years. mation that now back six forward, go case should then we would like nonetheless, I think very there is a real to, says, as our motion have it set soon рossibility element and that we have been after year. the first of the certainly We prejudiced by essentially failure to get discovery will quickly done as as prosecute this action. we can. “But we you, are concerned because of “THE Thank COURT: Mr. Tucker. length Beane, of time that this pend- case has been Mr. on behalf of the defense. ing. We are concerned with fact that Yes, “MR. BEANE: Your Honor. This getting now we are information with re- morning at leaving 10:00 o’clock as I was spect to witnesses and documents that we my I office received this motion for the four, And, years ago. should have had five order of dismissal or alternatively va- again, strictly it’s been becausе the fact cating the only trial date. And the re- pushed has not this case sponse that I have to offer is we are late in period forward for some infinite of time. giving ihterrogatories. answers to We are essentially “That’s argument our on the sorry that that has occurred. We were suppose motion to vacate or dismiss. trying give complete pos- as answers as respect compel- that the motion with to the sible, pretrial; and do that ling interrogatories answers to is rather we needed access to another file which we except moot expenses. now for the issue of only recently were able to obtain to do that. particulаr We did have to file in this case a Obviously today’s that did not come until get motion to those answers. I don’t know date. if the answers would have been forthcom- length “As far as the of time in which ing had we not filed. pending, stayed this case has been this was rule, recall, speaks “The as I to the fact months, years, for a number of if not as a if the court must enter an order com- *7 think, agreement, result of some I between pelling that the court shall consider the counsel, Weaver, Mr. former and former attorney issue of costs and the fees at a counsel for the I defendants. But couldn't hearing. I certainly— think in this case it speak to that because I wasn't in involved the court has the discretion to consider that the case at that time. And I don't know light get issue of the fact that we did not why this case as as it sat did. today. those answers until “I noticed in the file there were several So, Tucker, you “THE COURT: Mr. have stipulations among counsel to vacate prejudiced, you say, been both the ex- why trial dates as I it. understand But pense by your continuing incurred client is, My I that don’t know. involvement has to have to defend this suit as well as the May come in this case since of 1984. The lapse your perhaps prospec- of time and a — very point made court it clear at that inability properly tive to defend because of time; time that this was one of its older cases lapsed that amount of is that cor- proceed. rect? wanted to and pretrial pretrial memoran- ready before the proceed. “We that we are to feel —the they prej- if the court prepared, If the feel have been that we deems defendants dum receiving our to inter- appropriate. udiced answers that date, rogatories late at this we wouldn’t not why “As to Mr. Ellis has answered change in seriously oppose a the trial date timely interrogatories in a more man- these they remedy if will it a result feel that as ner, upon receipt of these inter- I of both of that. him, promptly gave them to rogatories case, though, “To I think dismiss this He tо asked him to answer them. indicated the fact earlier would to overlook that for his me that he to have review to needed agreement type there some to con- was as a file known Rob- properly answer them it; don’t think the has a tinue and I Myers Compa- Falls Canal ert versus Twin dismissing the case itself. basis for ny. Beane, you Mr. became “THE COURT: a court “THE That’s case? COURT: I case in of 1984 as involved this that was a case “MR. BEANE: That it. We did hold a status confer- understand involving the same in District Court before year. you ence 1st of this Both on June litigation. of this subject flood that’s the reported fully and Tucker on the status Mr. case; your representa- of this and based is a case is “THE And that that COURT: me, originally pretrial tions was set for to a record? public a matter today. set 2nd. It’s now November Yes, Honor. “MR. BEANE: Your And set for 19th. the trial was November “THE Mr. Ellis have And did COURT: “Why has Mr. Ellis been so slow an- coming into any difficulty whatsoever interrogatories getting swering these their normal clerk between office prepared I find that is a for trial? there procur- o’clock and hours of 9:00 and 5:00 pretrial here filed the de- memorandum ing that file? I in this action. am unaware of fendants your re- filing such a memorandum as is “MR. BEANE: No. But research quired my order. attorney, who Myers’ now notes of Mr. Falls, background resides Idaho file, BEANE: I have one to Your “MR. depositions we including material that just pretrial I receivеd Honor. But their to answer the reference to wanted make morning this at 10:00 o’clock memorandum interrogatories not available in the were morning myself this as I did this motion. public court file. Beane, pretrial Mr. “THE COURT: those a part Anything ordered as “THE further? memoranda were COURT: setting pretrial conference and order “MR. BEANE: We obtained file last anything other than without reference to these answers these prepared week and requires essentially simulta- Rule 16 which producing interrogaories. As far as they And for the filing neous of those. are that we intend the court the exhibits court; at juncture this benefit of this utilize, we only justification And little benefit. I see am without these is that same рresenting those dis- case should not be why reason in a requested feder- have been documents missed. Valley Trout in which al antitrust suit Beane, why has this lan- case “Mr. involved; quarter of a is and over Farms *8 Why has Ellis been guished this? Mr. like Lake have been Salt million documents only requested not matters unresponsive And by opposing counsel. being reviewed defendants, by those by but ordered though difficulty, even Mr. we have had this court? trips down to Salt Ellis has made several from the Lake, exhibits Honor, to retrieve those file I can Your “MR. BEANE: Lake for the defendants’ counsel Salt time, realizing it’s at this with the court available him. making of them day purpose the rule—it’s wanted pursuant to I am afraid those only things are the we permit To the district court to away take represent could to the court. plaintiff’s day in court for a minimal orders, violation of its and preju- when no “THE COURT: you, Thank Mr. Beane. by dice can be shown one-day either the Counsel, was, this matter as Mr. Tucker delay producing documents, or the out, pointed by initiated means of a formal length pendency case, violates complaint filed Mr. Ellis in October of judicial policy well-established in this state. filed, 1978. An then, answer was by de- provides: I.R.C.P. 1 “These rules shall be fendants in of 1979. This matter has liberally construed just, to secure the been set on various occasions and vacated speedy inexpensive determination of for whatever reason. The record doesn’t ever action and proceedings.” Guided precisely indicate why. The record does Rule 1 past this Court in the has not been reflect, however, previ- that this case has quick so outright to affirm dismissals ously been dismissed the court for fail- based on nonprejudicial technical errors. prosecute. ure to That was then set aside Bakes, Justice authoring opin- the Court’s by the court on the affidavit of—motion ion in a case where the district court had and affidavit of plain- counsel for the appeal dismissed an for failure to file a tiff. This court on its motion set a status bond, cost wrote: May. conferеnce That status conference judicial It has policy been in Idaho ultimately held in year. June of this that controversies be determined and dis “Counsel, I am—and I will cite the au- posed particular of each on its own facts thority of Robert and Colleen Bartlett v. justice and as substantial may require. Peak, 284, Donald Idaho 688 P.2d [107 The judicial exercise discretion (1984)], Supreme Court Case Number should to bring judgment tend about a 14894, 3rd, good October 1984. For Harris, on the merits. Neal v. 100 Ida prejudice cause shown in- would 348, 350-51, 234, ho 597 P.2d 236-7 ure to the defendants both in the costs of (1979). having to defend prejudice this suit and the language appropri- which he found which inures to the defendants as a result ately reversing used for the dismissal was delay, of this I hereby do and will dismiss Bunn, 710, from Bunn v. 99 Idaho this case in entirety. its (1978), P.2d 1245 where this Court reversed “Mr. inability respond Ellis’ to orders equally judge an esteemed district who had of court are such that Mr. Ellis has abso- paying entered a dismissal for fees lutely right proceed any forfeited his reporter. due to a court further with his claim in this court. Unless stated, opinion pertinent our Bunn as I am ordered to hear this case here, that where a decision to dismiss state, Supreme open Court will not (there appeal) soundly an has been made again. this file proper regard all attendant cir- preju- “MR. BEANE: Dismissed with interfere, cumstances this Court will not your ruling? dice? Is that at 587 P.2d at id. alsо noted sir, Yes, “THE certainly COURT: it most required clearly that Idaho case law some again except is. Never to be refiled on proof prejudice prerequisite as a to a Supreme you order of the If Court. need dismissal, at 587 P.2d at id. up appeal, certification to take this I will Court, Today’s opinion making for the any sign be available at time to it. Neal, Bunn, supra, mention of nor of su you, “MR. Thank Your Hon- TUCKER: pra, but returns to the earlier case of or. Lathan, Warden v. 96 Idaho 524 P.2d you, “THE Thank Mr. Tucker. The facts of that case are COURT: There, you, (Whereupon totally Thank Mr. Beane. dissimilar to this. the case wholly ready proceedings in the above-entitled matter was аt issue and for trial in January passed adjourned)” were but on four succes-
919
addition,
1973,
April
In
In
it must be noted that the
sive calendar calls.
of
the
comply with
appellant has here failed to
moved to dismiss for lack of
defendant
Ap
provisions of the Idaho
a number of
supporting
prosecution, and
a
affida-
governing presentation of
pellate Rules
up
prejudice
vit which set
the
nonavail-
of
example,
this court. For
the
appeals to
witnesses. There was
ability material
appellant’s brief fails to set forth either
motion;
hearing on
then
a
the defendant’s
in
case or the
the facts involved
granted.
opinion
it was
As this Court’s
also
proceedings had below. The brief
attending cir-
noted: “In view all the
appeal.
any
to denominate
issues on
fails
cumstances,
say
cannot
that the court
we
And, appellant fails to
See I.A.R. 35.
dismissing
the ac-
abused its discretion
argu
provide
any
record or
a sufficient
Warden,
prejudice.”
supra, 96
tion with
concerning
in
propriety
the
of the
ment
35,
majority
trial date was established for the 2nd November, 1981, plaintiff both and de- stipulated
fendant to vacate the trial set- R.,
ting. p. February Vol. 22. On
1982, defendant’s counsel filed a motion to setting, acknowledging
vacate trial Chapter was involved in 11 bank- R.,
ruptcy proceedings. 1, pp. Vol. 26-27.
A stipulation setting to vacate the trial
March 17 and was thereafter parties.
signed counsel for each .of the
R., 1, p. September 28. Vol. action,
after the court had dismissed the
plaintiff’s Motion to Aside the Order of Set granted,
Dismissal was as both counsel of ongo-
record indicated to the court that the bankruptcy proceedings prevented the
ing R., going
state court case from forward. 1, pp. 31-35.
Vol. delay complained by defendant only part caused defendant. Not stipulate trial
did the defendant to vacate did, occasion,
settings, they on one file but Setting own Motion to Vacate Trial
their ongoing bankruptcy proceed-
based on the
ings. estopped from Defendant should light of their
arguing about the
own actions. respectfully dissent.
712 P.2d POSS, Claimant-Appellant,
Randy SHOP, Employer,
MEEKER MACHINE Compa
Argonaut-Northwest Insurance Defendants-Respondents. Surety,
ny,
No. of Idaho.
Supreme Court 24, 1985.
Dec.