222 Wis. 653 | Wis. | 1936
The defendant contends that under the doctrine of Smith v. Carter (1910), 141 Wis. 181, 122 N. W. 1035, where the court declared:
“Protraction of litigation may be a serious abuse, and it is the duty of trial courts, independently of statute and under inherent powers, to discourage it as much as possible and to refuse fheir aid to those who negligently or abusively fail to prosecute the actions which they commence.”—
and under sec. 269.25, Stats. 1933, which is as follows :
“Dismissal for delay. The circuit courts and the superior courts may dismiss, upon their own or upon the motion of either party and with or without notice, any and all actions or proceedings pending therein in which issue shall have been joined and which shall not be brought to trial within five years from and after the commencement of such action or proceeding.”- — •
the trial court abused its discretion and was in error in denying his motion to dismiss the action. This is the only question presented for consideration upon this appeal.
This section was enacted by ch. 119 of the Laws of 1897 and has been considered by this court in a number of cases.
In Hine v. Grant (1903), 119 Wis. 332, 96 N. W. 796, it was held that the trial court abused its discretion in refusing to vacate an order dismissing an action for want of prosecution when a continuance over the term had been agreed to by plaintiff’s counsel at the réquest of the attorneys for the defendant. Due to the continuance the action could not be tried within the five-year period.
In Smith v. Carter, supra, it was held that the decision of the circuit court dismissing an action for want of prosecution would be reversed only for a clear abuse of discretion.
In Pereles v. Christensen (1916), 164 Wis. 163, 159 N. W. 817, it was held that the section is permissive, not mandatory, and does not bar an action on a note not brought to trial within five years.
In Wisconsin Lumber & Supply Co. v. Dahl (1934), 214 Wis. 137, 252 N. W. 714, the court said:
“As said in the Condon Case (1924), 183 Wis. 435, 437, 198 N. W. 268: ‘Unless there is a clear and justifiable excuse for not bringing the action to trial, this court will not reverse the judgment (of dismissal) of the lower court. The record in this case does not show any such excuse.’ In the instant case the record does not show any such excuse, taking the offers of proof of the plaintiff as established verities. Had the trial court received the proofs and held the delay excusable, we could not have upheld his decision as the exercise of sound discretion. To do- so would have been ‘to annul the legislative policy of the state; it would be changing the law instead of enforcing it.’ Lamb v. Shoemaker (1925), 185 Wis. 323, 327, 200 N. W. 379.”
In this case from an affidavit submitted on behalf of the plaintiff by its president it appears that plaintiff from time to time, in the years 1933 and 1934, inquired of his counsel when the case would be reached for trial. In response to these inquiries the plaintiff was advised that the case must await its regular order on the calendar and that there was nothing for the pláintiff to worry about. In 1934, plaintiff becoming concerned over the delay in bringing the action on for trial, and being unable to obtain a satisfactory explanation from counsel, retained other counsel to' ascertain the exact status of the case, and whether or not it could be brought on for trial. The plaintiff then learned for the first time that the summons and complaint had never been filed; the plaintiff urged its counsel repeatedly to'bring the case on for trial, but notwithstanding its insistence, counsel failed to proceed; thereupon plaintiff requested its counsel to sur
In Wisconsin Lumber & Supply Co. v. Dahl, supra, the matters urged as an excuse for failure of prosecution were that the plaintiff had made numerous attempts to have the clerk of the circuit court for Kenosha county set the action for trial; that the attorneys for the plaintiff had consulted on three or four occasions with the attorneys for the defendant. In Wisconsin Lumber & Supply Co. v. Dahl no activity of the plaintiff itself looking to the bringing on of the action for trial was disclosed, and in that case a review of the judgment dismissing the suit was sought.
In this case, in the exercise of its discretion, the trial court denied the motion dismissing the action. From the affidavit it appears that the plaintiff was assured from time to time that the reason the case was not brought on for trial was the congested condition of the calendar in the circuit court for Milwaukee county. It appears from the affidavit that the
By the Court. — Judgment affirmed.