This is an appeal from a decree of the District Court dismissing, for want of prosecution, a bill for specific performance. There were eight similar suits which were dismissed at the same time, and for the same reason. For the purpose of the proceedings in this court, all cases have been consolidated. The cases thus consolidated with this case are Nos. 6315 to 6322, both inclusive. The conclusions reаched in this opinion will apply equally to each of the consolidated cases.
On February 18, 1929, appellant filed, in the circuit court of Perry county, 111., a bill for specific performance. It is allegеd in the bill, among other things, that on May 19, 1927, one A. E. Montroy (hereinafter referred to as the landowner) entered into a contract, in which his wife joined, with appellant whereby, in consideration of $1, they gave to him an option to purchase their farm consisting of 80 acres, lying in Perry county, 111. The optional contract, as shown by the copy attached to the bill of complaint as an exhibit, purported to grant to appellant the right to purchase such rear estate at any time within a period of twelve
In so far as the record discloses, no further steps were taken until March 5, 1934, at which time, by lеave of court and upon motion of appellant, the Electric Shovel Coal Corporation and its receivers were made parties defendant. No summons was issued, however, for these defеndants, and no service had upon either of them. Neither of them appeared to the action, and neither is party to this appeal. Upon application of appellant, the case was continued from term to term thereafter, and no further steps were taken until on March 3, 1937, at which time appellee Mississippi Coal Corporation filed, by leave of court, an amendment to its mоtion to dismiss which had been on file for almost eight years. The amendment contained two additional specifications, one of which charged laches on the part of appellant, and the other charged that some of the property had been transferred to persons who were not parties to the action.
On March 30, 1937, the District Court filed a written memorandum opinion which contained a complete statement of the facts, with reference to the record, upon which its conclusions were based. A final decree was entered upon the same day, dismissing the cause for want of prosеcution at appellant’s costs, from which decree this appeal is being prosecuted.
There are four assignments of errors relied upon by appellant, as follows: First, the court erred in abusе of its discretion by dismissing this suit under rule VIII (5), rules of the District Court, after a hearing on the merits of defendant’s motion fo dismiss plaintiff’s original bill; second, the court erred in granting the motion of the defendants to dismiss this suit on fhe ground of laches; third, thе court erred in failing to add to its decree of dismissal that same was done without prejudice to the parties; fourth, the court erred in denying plaintiff’s motion to reinstate.
The first and second assignments present thе vital question, and may be considered together. Summarized, they present the simple question of whether or not the District Court abused its discretion in dismissing the bill. In determining this question, it must be kept in mind that this is a suit in equity and its disposition is governed by еquity principles and the rules of the District Court. There was in force, at the time of the dismissal of the bill, a rule of the- District Court which provided, in substance, that every cause in equity in which no orders had been entered оr proceedings taken within the preceding six months, indicating an intention of the party to prosecute the same further, might be dismissed for want of prosecution. This rule, as well as the general principles of equity, was invoked by the court in the instant case and the cause was dismissed.
The optional contract which appellant seeks to enforce by this action had been executed almost ten years рrior to the decree of dismissal, and more than eight years had elapsed since the filing of the suit. Within a few weeks after the removal to the District Court, appellee filed a motion to dismiss, and answer, thus presenting an issue for determination. According to the record, appellant took no steps to have this issue determined. Furthermore, he permitted the case to lie dormant without an order of any kind being entered therein
The rule, which was finally invoked by the District Court, was promulgated for the purpose of making effective the equitаble principle that “equity aids the vigilant and not those who slumber on their rights.” 10 R.C.L., Equity, § 138, p. 388; Deadman v. Yantis,
The power of the District Cоurt to dismiss a cause in equity for want of prosecution, either upon its own motion, or upon motion of the defendant, has been before the courts many times, and it has been universally held that it has such power. The only question is that of an abuse of discretion. We have commented rather extensively upon the state of the record to determine whether or not there was such an abuse of discretion upon the part of the court in dismissing the bill as to require reversal of the case. We find no such abuse. The following language of the court, in the case of Facer Forged Steel Car Wheel & Locomotive Wheel Co. v. Carnegie Steel Co., 3 Cir.,
The third assignment of error challenges the form of the decree in that appellant contends the dismissal should have been “without prejudice to the parties.” It has been often held that the dismissal of an action for want of prosecution, and not upon its merits, is no bar to a subsequent action. See Gilbert, Sheriff v. American Surety Co., 7 Cir.,
The fourth assignment of error is the denying of appеllant’s motion to reinstate. The motion to reinstate was filed on May 8, 1937, and attached thereto is the affidavit of the attorney for appellant which attempts to explain the cause of the delay, etc. There was also filed, at the same time, an affidavit of the attorney of record at that time for appellee, to which is attached correspondence between appellant’s attorney and appellee’s attorney, extending over the period of this litigation. This correspondence related to conferences, requests for delay on the part of apрellant, etc. This appeal is from the decree of March 30, 1937, dismissing the cause for want of prosecution and the correctness of the order denying the motion to reinstate is not presented for review. We have, however, examined the affidavits and correspondence, and find no error in denying such motion.
The decree of the District Court is affirmed.