274 P. 192 | Nev. | 1929
It will be noted that the telegram made no suggestion in respect to the provisions of the statute for "the payment of costs." This being a necessary prerequisite to a dismissal upon the plaintiff's own motion, the clerk could take no action in the premises. In this case also it appears that a provisional remedy had been allowed by issuance of an attachment, which in the case of dismissal the clerk was required to deliver the undertaking to the defendant.
When we come to consider the motion to vacate upon the ground of surprise, under the provisions of Rev. Laws, sec. 5084, we find that the application for relief fails also to comply with the provisions of the statute in that it is not based "upon affidavit showing good *276 cause therefor." The application for relief was based upon a mere notice setting forth certain grounds and not accompanied by any affidavit whatsoever. Respondent in this case, however, would be in little better position had the notice of motion been accompanied by the required affidavit. The statements contained in the notice, even if sworn to, could not by any possibility state a case of surprise. It is not anywhere contended that counsel for the plaintiffs were unacquainted with the provisions of the statute. They could not, therefore, have expected that either the clerk or Mr. Eather could have taken any action when the telegrams made no suggestion for compliance with certain prerequisite requirements of the statute before a voluntary dismissal on the part of the plaintiffs could be had. Even if we assume that the clerk and Mr. Eather would know that counsel for plaintiffs meant "dismissal" under the statute when they used the expression "discontinuance" in the telegram, they, of course, could not act, because no provision was made for the payment of defendant's costs or the surrender of the undertaking on attachment. What they may well have assumed in view of the reading of the telegram is that counsel desired a further continuance, which the attorneys for the defendant would not agree to. Otherwise there was no reason for the use of the expression "Mrs. Hough is sick." Respondents properly discontinued the action and dismissed same by the telegram sent to the clerk of the court. There was no necessity to mention costs; the statute was full protection in that regard to the appellant. The liability of the respondents for the costs was fixed by statute, was a duty and obligation which could not be avoided, and which, therefore, the clerk, respondents and appellant had a right to assume, and should have assumed, would be paid.
It it should be found that a proper discontinuance of the action, or judgment of dismissal, was not required by the telegram to the clerk, then the respondents were *277 entitled to be relieved of the judgment of dismissal entered by the court on motion of appellant in pursuance of the provisions of Revised Laws, sec. 5084. It is respectfully submitted that the respondents had taken every reasonable step that might be required of them to secure a dismissal of the action, and that the judgment of dismissal entered by the court on motion of appellant was a surprise to the respondents and that they were without fault in the premises.
It is submitted that no modification should be entered to make any allowance for whatever the costs might be, in view of the fact that such costs were needlessly incurred, and incurred in the face of explicit information two days before the date of trial that the trial could not possibly proceed.
In conclusion it is submitted that in matters such as are raised by the appeal in this case, this court will depend largely upon the discretion exercised by the trial court. The trial court was in full possession of the facts, had the entire situation intimately before it, and in the exercise of a wise judicial discretion set aside the judgment of dismissal. In addition to this, it is a fundamental rule of law that courts do not favor denying to a litigant his day in court, and that only in those cases where the court is bound by law to do so will matters of mere technique be permitted to interfere with the due course of justice.
The case was set for trial on June 7, 1927, at Eureka, Nevada, about 200 miles distant from Reno, where the attorneys for both parties resided.
On the 5th day of June, counsel for the plaintiff applied to counsel for the defendant at Reno for a stipulation continuing the setting of the case for trial, which *278 was refused. On the morning of the 6th counsel for defendant started for Eureka to try the case on the 7th. On the same morning counsel for the plaintiff telegraphed the clerk of the court at Eureka as follows:
"Please enter discontinuance of the case of M.J. Hough versus Reserve Gold Mining Company. Mrs. Hough is sick and attorneys for defendant will not grant a continuance."
Simultaneously he sent a telegram to an attorney in Eureka requesting him to see to it that the dismissal of the case was entered. Both telegrams were delivered on the morning of the 6th about 11:45.
The clerk failed to make the order of dismissal, and, on the following morning when court convened, counsel for the plaintiff failing to appear, counsel for the defendant moved for judgment of dismissal of the suit, the dissolving of the attachment, and for costs, which was granted.
1. On the 16th of the same month, the plaintiff served and filed its notice of motion to vacate the judgment so entered, upon two grounds: (1) Because the dismissal should have been made by the clerk on plaintiff's request on June 6, hence the court was without jurisdiction to make the order of June 7. We need not state the second ground given. The motion should have been sustained on the first ground.
It is provided by section 5237, Rev. Laws, that an action may be dismissed, or a judgment of nonsuit entered in the following cases: "1. By the plaintiff himself at any time before trial, upon the payment of costs, if a counterclaim has not been made. * * *"
No counterclaim was filed in this case. The word "discontinue" is synonymous with "dismiss" (Farmers' Oil Mfg. Co. v. Melton
Stuart,
2. There is nothing to the contention that the accrued costs must have been paid before the order *279
of dismissal could have been properly entered. As said in Hancock Ditch Co. v. Bradford,
The order appealed from was based on the second ground of the motion, but, being right, should be, and is, affirmed.
