O'Mara v. Newton & Northwestern Railway Co.

Ladd, J. The petition, alleging injury to a horse by collision with the defendant’s train in a right of way where it had the right to fence, was filed January 24, 1907, and an amendment thereto October 17th followed. The answer, a general denial, was filed the same day. The trial was begun October 18th, and resulted in a judgment for $850 October 29, 1907. The defendant appealed, and the judgment was reversed November 19, 1908. 140 Iowa, 190. 702 Procedendo issued April 12, 1909, aud was filed in the district court the next day; but the case was not placed on the calendar until October, 1909, term of court. Nothing was done with it at that term, and at the November, 1910, term there was a continuance because of no trial notice having been filed. No entry appears to have been made at the January, 1911, term; but on the first day of the April term following — that is, April 11th — the court, on its own motion, entered an order dismissing the cause for want of prosecution, and taxed the costs against the plaintiff. Counsel for plaintiff did not ascertain this until May 4th following, and on the next day G. M. Tripp, a member of the firm of Tripp & Tripp, orally requested the court to set the judgment aside and reinstate the cause on the calendar, saying that he had not. learned of the judgment until the evening before; that the cause had been continued from time to time by agreement of parties; and that the plaintiff desired to try the case. The court required application to be made in writing, which was done May 9th, and, in addition to what was said orally, and the foregoing facts, recited that 'the attorneys for plaintiff resided at Colfax, a distance of twelve miles from the county seat; that the cause had been continued from time to time by agreement of parties, the defendant’s attorneys having consented thereto on account of the condition of G. M. Tripp’s eyesight; that his left eye had been seriously injured May 16, 1909; that his physician had advised him that to use his eyes much would endanger his eyesight, and did not permit him, until December, 1910, to read, and then he could do so but little before his eyes would,blur, and since which time he has been able to do only a little reading. This showing was supported by affidavit and not contradicted. No order had been entered exacting that, unless the case were brought on for trial, it would be dismissed; nor had any trial notice been filed for the term at which the dismissal was entered. The court, in overruling the motion, assigned the following reasons 703 therefor: (1) The cause had been on the calendar many years. (2) No effort had been made to bring it on for trial, and it could not then be'tried, as the jury had been discharged. (3) Court was tired of calling it, and the defendant had gone into the hands of a receiver appointed by the federal court. i. Actions: dismissal. The mere circumstance that a receiver had been appointed since the action was begun, of course, furnished no reason for its dismissal (Weigen v. Insurance Co., 104 Iowa, 410), and undoubtedly the court could have relieved itself of the burden of calling this case without dismissing it. Indeed, the practice prevails in many counties of the state of not printing causes not noticed for trial on the bar docket more than once a year, and of dismissing for want of prosecution those running on the calendar longer than a period designated, in the absence of a showing of merit and excuse for delay. What may have been the practice of the court in Jasper county is not disclosed. 2' dismissal by court.1 , But, though the cause was promptly tried in the first instance, it had been pending since its reversal in November, 1908. The delay in the issuance of the procedendo and docketing the cause is not explained. It is to be said, however, that defendant had taken no exception thereto. Thereafter, the continuances were by agreement. It may be that, notwithstanding the condition of Mr. Tripp’s eyes, he could have tried the case, or his partner have done so without him; but defendant’s counsel evidently deemed his condition such as to justify them in acquiescing in his desire that the trial be postponed until he might participate therein without danger to himself, and we are of the opinion that the court should have recognized their right, in the absence of any order or rule of court to the contrary, to postpone the trial over the term. Had the court required in advance the disposition of this or of the causes generally which had been on the calendar for a defined period at that term, 704 thereby advising litigants of the necessity of trying tbeir causes, or having dismissals for want of prosecution entered, appellant would have had no cause, of complaint. But no order of the kind had been entered; and, as the parties had agreed upon a continuance, counsel had the right to suppose that this arrangement, in the ordinary course of business, would be recognized and prove effectual. Instead, without warning, the action was dismissed by the court on its own motion, and at a time when another action on the same cause might not be maintained owing to the statute of limitations. While recognizing the large discretion a trial court may exercise in the control of its calendar, we can not avoid the conclusion that its order and ruling in the case at bar, though not so intended, was somewhat arbitrary, and not to be approved'. — Reversed.