It seems very plain that upon tbe showing made tbe trial court should have vacated tbe order of dismissal. Our statute (sec. 2811a, Stats. 1898) provides that circuit or superior courts may dismiss, with or without notice, all actions or proceedings pending in which issue ha3 been joined and which are not brought to trial within five years after their commencement. See. 2832 of the same statutes provides that the court or judge may in discretion, and upon just terms, and within a year after notice, relieve a party from any judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.
The order of dismissal was properly made under the first section cited. All the facts required by the section then appeared without dispute. It appeared to be a case of sheer and inexcusable neglect. But when the application to vacate the order was made other facts appeared, which were undisputed and very persuasive. These facts were that the action was noticed for trial in August, 1898, and that negotiations for settlement were then entered into which lasted for several months; that in February, 1902, on request of one of the defendant’s attorneys, a written stipulation was made, continuing the-case over the then approaching March term, and placing it on the calendar for the September term; that at some time prior to the last-named term, the plaintiff’s attorneys, upon request of one of the defendant’s attorneys, consented that the case might go over that term; and that the plaintiff’s attorneys duly noticed it for trial at the March term, which was the next term following the September term. The March term, 1902, was within the five-year limit; the September
By the Court. — Judgment reversed, and action remanded with directions to grant the plaintiff’s motion to vacate the order of dismissal upon such terms as may be just, and for further proceedings according to law.