Donovan v. Jordan

Goss, J. The record facts decisive of all three of the above-entitled actions are practically identical ' Judgment in each has been awarded against defendant after denial of a motion to dismiss made and based upon the provisions of § 6999, Eev. Codes 1905, providing for the dismissal where the action is not brought to trial or to final determination within five years from its commencement. Plaintiff has brought three actions against defendant upon three different causes of action, with complaints verified respectively September 21, 1901, October 9, 1901, and October 4, 1902, all of which were instituted by attorneys Gordon & Lamb, formerly of Langdon, North Dakota, both of whom are since deceased. Within the thirty-day period answer was served; and note of issue was filed in the first two cases in October, 1901, and in the last in November, 1902. Affidavits of prejudice against the trial judge, and bonds for expenses, were filed in all three actions by the plaintiff on November 11, 1902. The causes remained untried, with no action taken by either party, plaintiff or defendant, and no steps taken whatever, except that other attorneys for plaintiff were substituted during the interim, until December 16, 1907, more than five years after said actions had been placed upon the calendar, and more than that period after the filing of the affidavits of prejudice against the trial judge of that district. On December 16, 1907, defendant filed motions to dismiss, which were heard by the judge of another district there presiding. The motions were based upon the record and supporting affidavits of defendant and his attorney, to the effect that “the [621] plaintiff has neglected and did neglect for a period of five years after the commencement of said action to bring the same to trial and to take proceedings for the final determination thereof;” and that the delay has not been occasioned by or because of the defendant. No affidavits in rebuttal appear to have been served or filed. The presiding judge denied the motion for dismissal, “for the reason that affidavits of prejudice were filed in each of said actions, and the court will presume that the judge of the seventh judicial district did his duty or honestly attempted to do so, procuring or attempting to procure another judge to try said actions.” To this order the defendant excepted, and on this appeal has assigned the same as error, contending that from the record, with the long delay unexcused and unexplained, under the statute, § 6999, Bev. Codes 1905, the action was deemed dismissed, and the court should have so ordered, instead of denying his motion and proceeding to trial. Plaintiff, in reply, urges that the affidavit of prejudice on file was a sufficient explanation of the delay if an excuse was necessary, and that the dismissal was discretionary with the court, and the court having exercised its discretion favorably to plaintiff by its denial of defendant’s motion, its action should not be reversed on appeal except for clearly an abuse of discretion not here shown. Such are the arguments of counsel upon this question. Since the trial court made the order in these cases on December 16, 1907, this court, in Lambert v. Brown, 22 N. D. 107, 132 N. W. 781, has had occasion to construe and apply § 6999, Bev. Codes 1905. It was there said that by operation of this statute “failure for five years after the commencement of an action to bring the same to trial creates a presumption of unreasonable negligence on the part of the plaintiff, entitling defendants to a dismissal of the action unless good cause for the delay be shown.” And we there held that an order dismissing an action six years old was properly entered. The trial court, as is apparent from a portion of the order of dismissal above quoted, considered that the fact that an affidavit of prejudice against the presiding judge had been on file for more than five years was sufficient to exonerate plaintiff from neglect, under a presumption indulged that the regular presiding judge had been unable to procure an outside judge to try the causes. It may be that it will be presumed that said judge, upon the filing of the affidavits of prejudice, complied with the statute, [622] and procured or attempted to procure another judge to hear the cases, but we will not presume that for a period of five years it was impossible to obtain an outside trial judge to attend for such purposes. Rather would we presume that an outside judge was obtained, but that other reasons existed for the long delay. The records of this court, of which we are asked by counsel for appellant to take judicial notice, disclose that at different times in 1903 and 1904 judges of other districts were at various time at Langdon, presiding in said court. This is disclosed from the record before us in Barry v. Traux, the opinion in which case is reported in 13 N. D. 131, 65 L.R.A. 762, 112 Am. St. Rep. 662, 99 N. W. 769, 3 Ann. Cas. 191. Under the record in this case, and under such facts, we will not indulge in the presumption that the delay was occasioned by the judge of that district, in the absence of any showing that plaintiff was ever, during said period, ready for trial, and endeavoring in good faith to obtain a final determination of these causes. Nor do we determine that sufficient excuse would have been shown for apparent neglect in prosecution had plaintiff brought upon the record the fact of an endeavor on his part to thus procure a trial of these causes. Notwithstanding the affidavit of prejudice, any unreasonable delay is chargeable directly to plaintiff, as it has already been adjudicated in this state that litigants have a remedy by mandamus to enforce the procuring of an outside trial judge in case the disqualified resident judge, for any cause, neglects to procure one. See Gunn v. Lauder, 10 N. D. 389, 87 N. W. 999, wherein an original writ of mandamus from the supreme court was issued upon a showing of less than a year’s delay in the procuring of another judge to act, after disqualification, by filing of an affidavit of prejudice against the resident judge. Under these facts, then, no excuse appears why the failure to bring this case on for trial, within the period since its commencement exceeding five years, is not neglect within the terms of the statute. There was, then, no ground for the denial of the motion made. But plaintiff avers that the denial was discretionary and should not be reversed except for an abuse of discretion. Under the facts shown there was no discretion vested in the trial court, as there were no facts brought before it upon which it could use discretion. The only determination to be made was whether a ease coming within the explie [623] it terms of § 6999, and for which the statute was passed, should be governed by the statute. We know courts are loath to dismiss on motion without trial on the merits, but the statute has said that it shall be done when the case falls within its terms, and this is such a case. And no discretion is therefore left, the duty of the court being only to dismiss. To hold otherwise is to nullify, disregard, and set at naught the expressed will of the legislature. If the statute does not here apply, it never applies, inasmuch as the facts are uncontroverted and no excuse is made for the delay; and the case stands fairly within our holding in Lambert v. Brown, supra, to be decided under a presumption that there was unreasonable neglect on the part of the plaintiff to bring this case on for final disposition. Lambert v. Brown was a stronger case in the plaintiff’s behalf than this, inasmuch as there considerable effort was shown to at least keep the case alive, as a dismissal was, on plaintiff’s motion, there once set aside during the five-year period. But here nothing appears to have been done for more 'than five and six years, respectively, in these actions. For similar holdings, see Notman v. Guffey Petroleum Co. 128 N. Y. Supp. 20 ; Mannion v. Steffens, 115 N. Y. Supp. 1087, affirmed on appeal in 135 App. Div. 921, 120 N. Y. Supp. 1134 ; Williams v. Jenkins, 76 Misc. 256, 134 N. Y. Supp. 890 ; Wilenski v. Philadelphia Casualty Co. 131 N. Y. Supp. 549 ; and Pociunas v. American Sugar Ref. Co. 74 Misc. 407, 132 N. Y. Supp. 395, reversing the same case in 130 N. Y. Supp. 162, and dismissing the action; Silverman v. Baruth, 42 App. Div. 21, 58 N. Y. Supp. 663. All of these cases are parallel to this in that they are reversals of orders denying motions to dismiss on identical grounds. Neither the trial court, nor this court, has any alternative other than to apply the statute to this case, so plainly within its terms. As the motion should have been granted and the order of dismissal entered, plaintiff having been entitled thereto by right, it follows that the judgment thereafter entered should be set aside and vacated, and the action dismissed, and it is so ordered. The same order will be entered in each of these three entitled actions.