Saville v. Frisbie

Thornton, J. The order of the 24th of February, 1881, dismissing this case, from which an appeal was prosecuted to this court, was here reversed in May, 1883, on the ground that the opportunity had not been afforded the plaintiff to show cause why the order should not be made. (11 Pac. C. L. J. 354.) The remittitur from this court was filed in the court below on the nineteenth day of June, 1883, and the motion to dismiss the action was renewed by a notice served on plaintiff on the 14th of July following. The motion was heard in October, 1883, and the order dismissing the action was made on the fifth day of the next month. The motion was made on [88] the ground that plaintiff had failed to prosecute the action with reasonable diligence, or any diligence. There was certainly great delay in prosecuting the action. It was commenced on the 31st of March, 1860, and referred to S. H. Dwinelle, Esq., on the 16th of May, 1861, to report a judgment. The plaintiff had not finished putting in his evidence when the notice of the motion was given. Evidence was introduced before the referee in the years 1862 and 1863. It does not appear that any further steps in the matter of the introduction of evidence were taken until June, 1883. David Saville, in whose name the action was originally brought, lived more than five years after the evidence introduced in 1863 was taken before the referee. During the period above mentioned, nothing further was done in the cause. In August, 1868, David Saville died. The present plaintiff was appointed administrator of the estate of David Saville on the 8fch of February, 1869, but was not substituted as a party plaintiff until the 24th of February, 1881, — more than twelve years after his appointment. There was evidence before the court below that the present plaintiff knew of the action and its condition for at least ten years before he was made a party. We see no reason why the reference of a cause for trial and judgment, and its pendency before the referee, should deprive the court of its full power to order its dismissal for want of diligence in its prosecution before the referee. We find no irregularity in the court’s making the order, and we think it justified by the circumstances before it. There is no error in the record. Judgment affirmed. Sharpsteih, J., and McKee, J., concurred. Hearing in Bank denied.