Corbett v. Great Northern Railway Co.

Spalding, Ch. J. This is an appeal from an order denying appellant’s motion to dismiss tbe above-entitled action, for failure of tbe plaintiff to prosecute it to trial witbin one year after tbe decision of tbe supreme court, reversing a former judgment entered therein by tbe district court. Tbe remittitur on tbe judgment of tbe supreme court was transmitted to tbe clerk of tbe district court about the 15th of April, 1910. The ease appears to bave been placed upon the calendar of tbe district court of Williams county at tbe next term, and to bave remained there three terms, until an order was made, March 15, 1911, striking it from tbe calendar; but, as shown, it was placed upon tbe calendar by tbe clerk without authority and without any notice of trial having been served. Tbe respondent excuses bis neglect by showing that it had at all times been bis purpose to bring tbe case to trial as speedily as possible, and that it was not noticed for trial by reason of a misunderstanding occasioned by tbe employment of two attorneys on the part of tbe respondent. Tbe principal counsel, seeing it upon the calendar, was thereby led to believe that tbe other counsel bad noticed it. ITe also showed that it could not bave been tried bad it been properly on the calendar. Tbe facts were fully presented to tbe trial court, who was also aware of tbe condition of the calendar in that county, and knew of his own knowledge whether tbe case could bave been reached for trial at any time, bad it been properly noticed. It is clear that tbe respondent relied upon tbe mistaken information given him by bis counsel that tbe case would be tried at tbe first term at which civil cases were tried, as it is shown that be was present on several occasions, with bis witnesses, prepared to go to trial. Section 7228, Rev. Codes 1905, provides that in every case on appeal in which the supreme court shall order a new trial or further proceedings. in tbe court below, tbe record shall be transmitted to such court and proceedings bad therein witbin one year from tbe date of such order in tbe supreme court, or in default thereof that tbe action shall be dismissed, unless upon good cause shown tbe court shall otherwise order. Tbe district court, in matters of this nature, is per [3] mitted to exercise its sound discretion, and its decision should only be reversed when that discretion is clearly abused. Bessie v. Northern P. R. Co. 18 N. D. 507, 121 N. W. 618. And, in view of the facts and circumstances surrounding this proceeding, we do not feel justified in saying that the court abused its discretion in refusing to dismiss the action. It is true that more than one year had elapsed without active proceedings having been taken, but the respondent was innocent in the matter, and his principal attorney was laboring under a most natural belief, and his failure to act was but the natural result of seeing the action upon the calendar; and we think it would be too harsh to hold, in this case, that the respondent must lose his right of action, in view of these facts and circumstances, when no harm has been done by the delay. Each case of this kind must, in a large measure, stand upon its own facts, and the facts in relation to this motion distinguish it quite clearly from those in the Bessie Case, supra. In that case Bessie was his own attorney. The order is affirmed. Goss, J., being disqualified, did not participate.