Nyberg v. Cambridge State Bank

Knutson, Justice. Appeal from an order denying plaintiff’s motion to vacate an order dismissing his cause of action with prejudice. The facts are not seriously in dispute. Plaintiff commenced his cause of action in April 1950, with Irvin E. Shermer as his attorney. Shermer withdrew from the case on November 3, 1950. S. B. Wen — 313 — nerberg was then retained as counsel, and he withdrew in February 1951. Plaintiff then retained Charles E. Carlson, Sr., to represent him, and the case was set over the February term of court until September 1951. After obtaining such continuance, Carlson withdrew from the case, and plaintiff then retained Milton G. Ouimette and Gordon S. Mangan as counsel. They dismissed the action on September 4, 1951, and in August 1952 commenced another action on behalf of plaintiff on the same claim. This action was noticed for trial at the February 1953 general term but was continued over the term because of the illness of one of the defendants. In August 1953, Ouimette and Mangan withdrew from the action, and plaintiff was unable to obtain other counsel prior to the September 1953 term, at which time his motion to continue the case to the February 1954 term was granted. In his memorandum to the order involved here, the court states that he reluctantly granted such motion to continue the case to the February 1954 term and specifically advised plaintiff that he must obtain counsel and be ready for trial at the February term of court. When the calendar was called in February 1954, neither plaintiff nor any attorney representing him answered the call of the calendar. On motion of defendants, the case was dismissed with prejudice. Plaintiff, in his affidavit submitted as part of the motion papers, explains his absence as follows: ct* * * that on or about August, 1953, your affiant had conversation with his attorney, Ouimette, at which time he was told that they could no longer handle the case and tendered return of the file to your affiant; that with the September, 1953, term of court approaching, your affiant attempted to obtain counsel to represent him at the trial of the case; that your affiant contacted Mr. Donald Bailey, an attorney in Minneapolis, Minnesota, but that said attorney declined to handle the trial of the case at that term of court for reason that he would not have sufficient time for preparation; that your affiant attended the call of the calendar on September 16,1953, and obtained a postponement of the trial until the February, 1954, term of court; that thereafter Attorney Bailey informed your affiant that he could not handle the case for reason that the matter involved certain con- — 314 — flicts of interest with respect to Ms representation; that Attorney-Bailey recommended Attorney William Howard for the handling of said case and accompanied your affiant to Attorney Howard’s office wherein a discussion was had with regard to Howard’s handling of the case; that Attorney Howard informed your affiant that he would investigate the file and make recommendations at a later time; that thereafter, as the February, 1954, term of court was approaching, your affiant was advised by his attorney, William Howard, that it would not be necessary to answer at the call of the February calendar and that, in fact, the case would be stricken from the calendar, but that the same could be reinstated in the next term of court; * * * J? Defendants contend that the court’s dismissal of the action should be sustained on three grounds, namely: (1) Failure to obey an order of the court; (2) lack of diligence in prosecution; and (3) the discretion of the court. As to the first ground, it is the contention of defendants that, when the case was continued over the September 1953 term, the court orally admonished plaintiff that he must be ready to proceed with the trial at the next term of court. An “order” of the court is defined in M. S. A. 1949, § 545.01, as follows: “Every direction of a court or judge made or entered in writing, not included in a judgment, shall be called an order, and every application for an order shall be known as a motion.” See, also, 12 Dunnell, Dig. (3 ed.) § 6503. While this statute has been superseded by Rules 6.04 and 7.02 of the Rules of Civil Procedure2 as to practice and procedure, an oral admonition such as we have here falls far short of the type of order which, if disobeyed, gives the court power to dismiss an action with prejudice under Rule 41.02. It must follow that the first ground relied upon by defendants is untenable. Nor do we believe that there has been such a showing of failure to prosecute as will justify a dismissal. It is obvious that plaintiff — 315 — has had difficulty in bringing his case on for trial. It might even be suspected that there is little merit to his cause of action. However, even a litigant who has a poor lawsuit is entitled to his day in court. The case had not been brought on for trial up to the February 1954 term because the court was willing to continue the case over the term. One of such continuances was made at the request of defendants. As long as the case is continued by action of the court, presumably due to a cause which the court considers sufficient to justify such continuance,3 it can hardly be said that there has been a lack of prosecution. We come then to the crucial question of whether the court may dismiss an action with prejudice for failure of one of the parties to appear at the call of the calendar. Section 485.11 requires the preparation of a printed calendar of cases to be tried at a general term in all counties except those constituting one judicial district where only one term of court is held each year. Section 546.07 specifies the order in which cases on the calendar shall be tried. Originally, District Court Eule 324 provided for a preliminary and peremptory call of the calendar. It read as follows: “There shall be two calls of the calendar. The first shall be preliminary; the second, peremptory. All preliminary motions, except motions for continuance, shall be made on the first call. The cases shall be finally disposed of in their order upon the calendar on the second call. Where, upon the preliminary call, or at any time after-wards, no response is made by either party to a case, the case shall be stricken from the calendar unless otherwise directed by the court.” In First Nat. Bank of Northfield v. Coon, 139 Minn. 320, 166 N. W. 400, we held that, under the above rule, a party was entitled to rely thereon and to have his case called for trial in the order in which it — 316 — appeared on the calendar. This rule was dropped in later revisions of the district court rules.5 Section 546.07 reads as follows: “The issues on the calendar of a general term shall be disposed of in the following order, unless the court shall otherwise direct: “(1) Jury cases; “(2) Issues of fact to be tried by the court; “(3) Issues of law. “If a party be absent, unless the court for good cause shall otherwise order, the adverse party may proceed with his case and take a dismissal of the action or a verdict or judgment as the case may require. If neither be present, the cause shall be stricken from the calendar.” This section has not been superseded by the rules of civil procedure.6 Obviously, the last paragraph of § 546.07 presupposes that a case will be called for trial. At that time, if plaintiff is not present, defendant may move for a dismissal. If defendant is not present, plaintiff may proceed to prove up his case and take a verdict or judgment as the statute provides. The words in the statute, “the adverse party may proceed with his case,” can mean nothing else than that the case has been called for trial. The record here fails to show that the case was ever called for trial. While the court rules apparently no longer expressly provide for a preliminary call of the calendar, that practice has become so common that we assume, in the absence of any showing to the contrary, that it was followed here. The record shows only a call of the calendar, not that the case was called for trial. On such showing the case may not be dismissed on the merits. TO® this case presents an extreme situation as far as the number of continuances granted is concerned, if the court has discretion to dismiss this case upon the call of the calendar for failure to answer the preliminary call, then the court could do so in any case. We therefore hold that the court — 317 — abused its discretion in dismissing the case and also in failing to reinstate it upon a proper application. Reversed. Footnotes [2] See, Rules of Civil Procedure, Appendix B (1) and B (2). [3] Rule 6 of the District Court Rules reads as follows: “No civil case on the general term calendar shall be continued by consent of counsel only, or otherwise than by order of the court for cause shown* * * See, 27 M. S. A. p. 630. [4] This rule was applicable to all districts except those comprising Ramsey, Hennepin, and St. Louis counties. See, Mason St. 1927, p. 2124; see, also, 6 Dunnell, Dig. § 9704. [5] See, Mason St. 1940 Supp. p. 1754; 27 M. S. A. p. 625, et seq. [6] See, Rules of Civil Procedure, Appendix B(1) and B(2).