*1
ployer. is not barred. Hence the claim I.C., statute, ex does not
The Sec. 72-1001 for acts statute limitations
tend the employee, but performed
are to be employer sum not exceed
penalizes in a complying with the sec not
ing for $500 section, as Non-compliance with this
tion. complied with in this
suming it not tolling or construed as
case, could provisions mandatory of Sec.
extending quoted. above
72-407 I.C. compensation
Unless has been has been
paid period of limitations surety, employer a claimant
waived year only has one from compensation within his claim made date his hearing on claim before
petition 72- Board. Secs. Accident Industrial petition No I.C. such 72-404, 72-407 prescribed time in this within Mining Dollar v. Silver Dunn See
case.
Co., 71 Idaho is affirmed. from appealed PORTER, TAY-
GIVENS, J., and C. JJ., concur. THOMAS,
LOR *2 appel- Barrett, Boise,
William W. lants. Kibler, Frank Nampa, Martin, F. F. J.
Boise, respondent. general spects overruled the demurrer days gave appellants in which fifteen thereafter, complaint; to amend 11, 1950, upon parte applica- September ex tion, appellants granted herein were days additional ten to amend complaint; there are no further other pursuant stipulation orders otherwise Up De- extending time amend. had cember pleading 1950 an amended filing. neither filed nor tendered for On filed served motion for prejudice, dismissal ground without on the that no had been within the time ordered court or .the *3 all; at the day appellants on same served upon respondent court with the complaint, an amended and on December THOMAS, Justice. 22, application 1950 filed an for to leave below, 25, the 1949 October On the complaint, supported by file amended herein, complaint contain- a filed appellants. the affidavit of counsel for to of action separate causes four ing some opposition Counter-affidavits were filed in damages injuries and personal for recover application the to for authorizing an order out an ac- automobile, of arising filing their the of complaint. the amended 1, January 1948. occurred cident appli- Both the motion dismiss and the leave to file the com- demur- for 17, general cation a 1949 November On at same time the plaint were heard the to each cause complaint and the rer to February 12, special court. 1951 the court de- On therein, as as well action application to file ambiguity in- the the amended uncertainty, denied murrer (cid:127) complaint granted the motion to dis- misjoinder as to the definiteness prejudice, and July judg- without entered action, On miss filed. ca'ise third appeal The is sustaining dismissal. the ment of from made its court the 1, 1950 only. of dismissal No judgment error is all causes of as to demurrer special the assigned ruling with reference general demurrer action, the demurrer. re- court on action, in all other cause third
7
21,
only question
Hamburger,
whether Telch
259
in this case is
v.
Mass.
155
dismissing
658;
Glines,
the action
N.E.
of the trial court
Nickerson v.
220 Mass.
333,
942;
judgment
107
entering
N.E.
Timmons v. Pine School
93,
242;
proper
just
Ind.App.
dismissal
22
Township,
N.E.
under
53
case; Application
showing
Melvyne
Co.,
Realty
and circumstances of
Sup.,
850;
82
court,
Loudy
or whether
in the exercise of
N.Y.S.2d
v. Elcomb Coal
discretion,
Co.,
732,
judicial
Ky.
953;
sound
should have re-
298
183 S.W.2d
Graves
judgment
Dakessian,
fused
v.
Mo.Sup.,
972;
to enter
ac-
dismissing the
132 S.W.2d
Yeary,
527,
tion. This
Branson
inquiry
Ky.
thus is now directed at
v.
266
99 S.W.2d
707;
propriety
Jockey
the action of the trial court
Barnett v.
Club,
Latonia
249
Ky. 285,
622;
authority
rather than its
to enter
60 S.W.2d
Rehkamp v.
Martin,
Ky. 34,
dismissal.
1115;
198
247
Rapp
S.W.
Parker,
v.
236,
535;
128 Ark.
193 S.W.
is universally recognized that a
It
Lyttle,
Ky.
Reid v.
304,
357;
150
150 S.W.
court has the
power
inherent
authority,
Howard v.
Co.,
Western Union
Ky.,
Tel.
in the absence
rule,
of statute or
ex
387;
76
MacAdam
Scudder,
v.
S.W.
127
ercise of
judicial
sound
discretion,
to dis Mo.345,
168;
S.W.
Jordan,
30
Curtis v.
110
miss an action for failure to comply with an
429,
591;
La.
34 So.
see
4
also A.L.R.2d
order of
court
relating
pleadings
350-362;
pp.
C.J.S.,
27
Dismissal and Non
filed or to
plaintiff,
including
fie
suit,
228;
64 page
65 page
§
§
232.
an order requiring the amendment of his
All courts of this State
pleadings generally,
have the
or with reference to
power
compel
obedience
orders,
to their
making them more definite and certain.
1-1603, I.C.,
Section
may,
Search,
Cook v.
where
45,
1039;
100
Okl.
226 P.
provided by
otherwise
rule,
statute or
Weil,
427,
adopt
Plummer v.
15
648;
Wash.
46 P.
any reasonably appropriate
Drake
means to
v. First Nat. Bank
en
Scott,
of Fort
them,
force
1-1622, I.C.;
Section
634,
219;
33 Kan.
P.
Thomp
7
Bushnell
dis
v.
appropriate
missal
son,
means to
115,
compel
453;
133 Neb.
274 N.W.
North
obedience. Greenhow v. Whitehead’s, Inc.,
port
Dist.,
Dist v. Farmers’ Irr.
Irr.
67 Idaho
People’s Dentists, 477, 183 Wis. 198 N.W. Both the motion to dismiss the ac 465; Co., Armour v. & 109 Ferson Neb. and to judgment tion enter of dismissal 125; 648, Security Central Co. 192 N.W. application and the for leave to file the Co., 166 Brewing v. Milwaukee-Waukesha complaint are made affidavits 994; 249, Essig, N.W. Lovette v. 164 only; Wis. witnesses no were called or ex 750; 461, Rudd City 52 N.W. v. of amined. Where 92 Mich. this is so it is a rule of 308, App. 768; 28 64 N.E.2d Reading, Ohio this court it will make original ex 8 Lola in son that he was unable locate set forth evidence as
amination
Perry until or about December 13th
record,
matter had never
though the
as
n beenheard
14th,
plaintiff,
court,
That
Kenneth
1950.
by the trial
examined
Perry
personal
W.
suffered
in-
severe
discre
judgment and
its
and will exercise
accident,
juries
pre
in the
as a result of
being
were
though the
tion as
case
disabled,
which
is still
he
incoherent
determination
instance for
sented in the first
time
memory
this
lacks
as
at
favorable
here,
is in as
this court
because
necessary
some
for the
details
amend-
as was
the matter
position
consider
ment of the
in the above
Circus
Siebrand Bros.
trial court. Curtis v.
entitled action.
285, 194 P.2d
Co., 68 Idaho
& Carnival
Mining &
281;
Virginia Gold
v.
Cleek
19, 1950,
“That on December
Affiant
232;
445, 122 P.2d
Co.,
Milling
63 Idaho
received defendants Motion to dismiss
Motors
v. General
Flying
Boise
Service
the above entitled action and Affiant
813;
5, 36 P.2d
Idaho
Acceptance Corp., 55
immediately prepared
an Amended
109,
P.2d
Stokes,
28
54
Savage
Idaho
v.
Complaint to
conform
the Court’s
Whittier, 20 Idaho
v.
900;
Hall
also
see
having
Order without
oppor-
had an
Wrble, 19
1031; Parsons
120,
v.
116 P.
tunity to contact
Lola
in
Improvement
8;
619,
P.
Council
115
Idaho
meantime. That said
Com-
Amended
P.
Draper, 16 Idaho
v.
Co.
plaint
with the Court at
202, 89 P.
Emery, 13 Idaho
Camp v.
Van
aproximately 11:15 A.M. o’clock on
139,
“That said affidavit for leave to file “ complaints said amended discloses that alleged, the negli- 'As acts Lola one plaintiffs, of said has particularly the gence and recitals since divorced the said Kenneth special to which this demurrer is Perry, and has remarried and resides addressed are more in the nature at Lewiston Nez County, Perce Ida- of statements conclusions of ho, and that said than does not law statements ultimate any necessary to establish or disclose facts the re- show 'reason whatsoever spective negligence.’, why acts plaintiffs counsel been unable has with to communicate her usual thereof, reason it has not required means between necessary communication at all that Court and his cli- have concealed from the communicate said respondents legal status of the true or addi- from further obtain ents in contrary plaintiffs; it said said is further set facts, rather on but tional *6 supplemental lodged affidavit that in the compiaint stat- amended an to redraft complaint amended reference to the of the conclusions than ing facts rather minor, Perry, Perry com- Darlene Kenneth W. amended which said pleader, and is drafted, Perry alleged and Lola have that she so and plaint could have daughter, their County, Ida- while in truth fact she in Ada and verified way daughter Perry, is not the in such and of Kenneth W. ho, herein filed and allegation and that said fully conform to the order conceals from the as manner to respondents court and from the true and in relation.” the Court of such material facts in this an case indicated respond- Subsequently one of counsel for diligence absence of in prosecution the .due support supplemental in a affidavit filed ent of the action. dismissal, respondent’s motion for in of appellants Counsel for supplemen- a alleged in that it the he sets forth which support tal in -application of their complaint in the amended as well as an to complaint, file the amended Perry and Lola W. that Kenneth forth, setting pertinent so far here, as wife at the time Perry were husband explanation reply supplemental to the is, accident, that purported Janu- respondent affidavit of with reference to the 1, 1948; he claim this was ary not does marital status Kenneth Perry of true, legal status but said sets that forth Perry, relationship Lola and the of Darlene thereafter, to prior the changed had Perry them; to each of therein it is set judgment action, in of the that a filing of forth that Perry Kenneth W. and Lola Per- which did not award was entered divorce ry were divorced some ten dispose months after the manner way or assign any or in or involved, accident and that there no of action on ac- any purported of causes disposition in the decree entered might therein of accident alleged the of count any community property community of either in favor have existed or could of causes prior action-which arose to-the of the decree that reason of plaintiff, and decree, and concluding divorce therein that party restoring to the each status divorce the said causes of action were either the right legal they have person no to single community property parties the that -action, and that for this reason joint file a they were tenants in common in relation in the as shown record reasons other thereto. respondent’s earlier affi- in set forth did not exercise due On the basis of the davit, showing set in said action, respective affidavits, prosecution of which is the only in the diligence us, appellants in did exercise such affidavits counsel for matter we before we will have injury or not assert that be to whether there would no our own discretion determine not, counter-showing respondent by delay showing filing in the of such made, complaints, would dismissal amended judgment of no'r did he assert proper. position therein that the same relative parties would al- remain if the court appellants, by sup- affidavit and lowed the filing complaints. amended plemental herein, affidavits filed ap- make it hand, On the other supple- the affidavit and parent that there existed no intent aban- mental opposition affidavit of _ action; don the appellants that counsel for application for leave to file had not sooner drafted and filed amended complaints in support complaint because he felt that it was neces- motion purports of dismissal sary to consult particularly with Lola point out the showing absence of a so; doing before did not know the diligence on part appellants whereabouts of Lola unable of counsel for his failure locate her until either 13th explain why he was not able to lo- sooner 14th, although he knew that *7 cate Lola Perry and then that Ken- asserts Perry Kenneth W. Perry and Lola were di- neth PerryW. an man, was and able-bodied vorced even at the complaints time the were employed was ninety days for some preced- filed, and Perry that Kenneth W. lived at the ing lodging complaint; of the amended Nampa, Idaho, readily where he could be however, the affidavit of appel- counsel for contacted, he did consult with him not with only lants not asserts in effect that the dis- reference to amending complaints the be- ability of Kenneth was not of a cause he was disabled and incoherent, and physical nature, but of nature, a mental and lacked memory as to some of the necessary this is not denied the counter-affidavits; details to aid in the amendment of the com- may he well be carry able to on his work plaints; 19, that on December 1950,the date and not be able any to recall of the instances on he copy received respond- or details which appellants dismiss, he ent’s motion to pro- immediately deemed necessary in order to amend the prepare ceeded to amended to complaints to conform to the order of the court, with the order of the even conform court; the counter-affidavits by re- have though he would not the benefit of a spondent do assert or claim any-in- that with Lola before doing conference jury damage or for the did, failure part the on so, that without benefit the conference, to prepare lodge sooner file the the a amended such day complaints complaints on same will result that to amended if copy dismiss; complaints of the motion to amended a are he received allowed to be filed. as lead this court parties are such position cumstances relative that the or application to file upon granting the injury hesitate or to the serious altered will be better, complaint, it is respond- wrong of any wrong, injury rule, be doubt should that such general ent. applicant as to so resolved in 'favor of supple- forth in their the matters set All mer- dispose substantial of the case its to marital reference mental Petersen, 697, 203 Dellwo v. 34 Idaho its. rights, status, relationship property are P. 472. here, properly to be considered matters not Upon examination careful full and the trial court subse- 'but are matters for all the mat- consideration of record and quent filing of the amended com- therein, in the exercise of ters set plaints. court, it is judicial this sound discretion accident oc- that the record shows judgment of dismissal that the concluded original 1, 1948, January curred on hereby reversed with in- is be and should that complaint was filed October reinstate below to the court structions complaint was filed to the the demurrer permit appellants to file the amend- case 17, 1949, the order that November complaint. ed the demurrer sustaining the Court appellants. Costs to sev- some day July, the 1st made on later; is there noth- months one-half en GIVENS, PORTER, J., J., con- C. par- either to indicate that record ing in the cur. be heard or dis- the demurrer ty asked date; record an earlier of at posed TAYLOR, (dissenting). Justice appeared be no ur- there indicates The record in this case one unrea- any to the action part party on the gency delay, sonably long neglect utter of this prosecution of the case. expedite the action, by themselves. No af- court, by this each review In (nor them was fidavit either of offered pecu upon its own be determined must case requested purpose) for that time disposed of as sub and should facts liar desire they *8 will further show require. The may seem justice stantial the action. The affidavit prosecute of their this court discretion present exercise does sufficient excuse. about a bring tend should KEETON, J., concurs. the cir- case, and when merits