Loose v. Cooper, 118 N.W. 406

Loose v. Cooper

118 N.W. 406

Iowa

1908

Check Treatment

Evans, J. —

On Nоvember 23, 1901, plaintiff and defendant entered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍into a written contract whereby the defend*378ant agreed to sell to the plaintiff certain stock in the Fidelity Insurance Company for an • agreed price of $11,250, to be paid, with 5 percent interest, at the rate of $125 pеr month. Other provisions were contained in the contract which need not be noticеd here. The contract provided for liquidated damages in the sum of $21,750. The plaintiff has brought this action for such liquidated damages. The defendant has filed a counterclaim for $20,550 as damages for breach of contract. The plaintiff filed his petition ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on April 22, 1902. The defendаnt filed his answer and counterclaim on May 12, 1902. The plaintiff filed his reply denying the counterclaim on May 16, 1902. No further proceedings of any kind were ever had in the case until June 29, 1907, and on that date the district court on its own motion dismissed .the case at plaintiff’s cost. Afterwards, on September 9, 1907, the plaintiff filed a motion to reinstate the case, and.on September 18, 1907, this motion was by the court overruled. The plaintiff appeals.

1. Dismissal of actions. Plaintiff’s contention is that thе court was not warranted in dismissing this case on its own motion, there being no request for a dismissal from either party. The ground upon which the court entered the dismissal does not appear in' the record. We would be better satisfied with this record if such ground did appear. When а court acts in such a case upon its own motion, it is highly desirable ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that it should state the ground uрon which it acts. The failure to do so gives an appearance of arbitrary action, and is a practice not to be commended. Nevertheless, we are rеquired to indulge in a presumption in favor of the ruling of the trial court. We are not justified in revеrsing it unless from an examination of the whole record we fail to find any ground to support it.

*3792. Same: want of prosecution: reinstatement. *378It is quitе apparent upon the face of this record that the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court would have beеn justified in dismissing this case *379for want of prosecution. The power is inherent in the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court, quite indeрendent of the statute. The ^ 7 x x • issues "were made up and the last pleading filed on May 16, 1902. For mоre than five years thereafter the case lay in a comatose condition. The amounts involved in both petition and counterclaim were sufficiently large to warrant sоme show of activity on the part of both parties. Apparently no effort was made by either party to bring the case to trial. Plaintiff states in his argument in this court that he and his attorney were present at the time of the dismissal. But it does not appear from such statement nor from the record that he made any objection at that time to the action of the court, nor took any exception thereto. Afterwards he filed a motion to rеinstate, but it does not appear that-he served any notice of such motion upon the defendant.

Appellant cites the case of Hensley v. Davidson Bros., 135 Iowa, 106. That case and the one at bar are not at all parallel. The power of the court to set aside a verdict on its own motion was concedеd in that case. It was held, however, that the only possible ground of the court’s action in thаt case was- the insufficiency of the evidence. Inasmuch as this court had in a former аppeal held that the evidence was sufficient to sustain a verdict for the plaintiff, it was held that the lower court was not justified in ignoring the decision of this court, and its action was therefore reversed. No such question is involved in the ease at bar. The court below was acting within the limits of a broad discretion which it was required to exercise fairly. We can nоt say that, under the circumstances appearing in this case, the court abused that disсretion.

The contract sued on in this1 case seems to have been drawn with such skill as to аfford to each party a substantial cause of action against the other. The рarties were prompt in going into court and in making up the issues. If in fact the defendant had nоtice of plaintiff’s *380motion to reinstate, he made no resistance to it. He appears to have been served with notice of appeal to this court, but be makes no appearance. Tbe’ circumstances surrounding tbe case are such as to fairly warrant a belief that tbe issues presented by tbe pleadings were fictitious and perhaps collusive, and that the records of the court were being used for ulterior purposes. — Affirmed.