167 N.W. 159 | S.D. | 1918
Appeal from an under dismissing an action! on ftae ground olf unreasonable delay in the prosecution thereof. The action which was 'begun in April, 1903, was brought to determine adverse claims to real estate. The complaint was in th'e usual form. Defendants answered separately, denying the allega
The 'defendant E. F. MtCo-y died Decémber 31, 1913. The •other ¡defendant, Anna E. McCoy, was appointed administratrix ■of his estate, which was- fully administered upon and closed ora November 5, 1914. Upon the calling of the calendar at the opening of the February, 1917, term, -the death of the defendant McCoy was suggested; that his estate had! -been fully administered upon avid the administratrix discharged, and that neither the administratrix nlor any other person had been -substituted as defendant in the action. No substitution appears to have been asked by either party. The record discloses various negotiations- and' offers of settlement on the part of plaintiff which are set out in detail, all of which offers were rejected by defendants- or -withdrawn by plaintiff. Plaintiff’s final offer was made in the fall of 1916, accompanied by a stipulation, which defendant’s counsel were requested to sign., that -the cause be finally submitted for decision upon a transcript of the evidence taken in 1903, in clase the offer of settlement was rejected. Both' the-offer of settlement and the stipulation were rejected by •defendant’s counsel. No further action was taken by either party until service of notice of trial by appellant’js counsel in February, 1917. On ¡the last day -of the February, 19x7, ¡term, appellant's counsel asked that -a -day be assigned for trie trial of the -cause, naming April 20th, when court would be in session, in .reply to which, respondent’s counsel indicated that the day was satisfactory, but his consent thereto must be subject to his right to move for a dismissal of the action. The motion was heard in pursuance of the stipulation, on April 20, 1917, upon affidavit® filed by both parties,
Section 882, New York Code Procedure, is substantially like subdivision 4, § 310, of our Code of Civil Procedure. In Jacot v. Marks, 26 Misc. Rep. 670, 57 N. Y. Supp. 904, where the answer set up a counterclaim upon a motion to dismiss the complaint for unreasonable delay on the part of plaintiff, that court said:
“There appears to be no doubt of the plaintiffs’ unreasonable neglect to prosecute the action. The answer, however, sets up a counterclaim, and demands affirmative relief, hut it doe's not appear that defendant has taken any steps to bring- the case to trial. He is apparently as guilty of laches as are the plaintiffs.”
Upon that ground the motion to dismiss was denied. See, also, Severin v. Hopper, 37 Misc. Rep. 863, 76 N. Y. Supp. 977; Bignold v. Carr, 24 Wash. 413, 64 Pac. 519.
The order of the trial court is reversed'.