Hine v. Grant

WiNslow, J. It seems very plain that upon tbe showing made tbe trial court should have vacated tbe order of dismissal. Our statute (sec. 2811a, Stats. 1898) provides that circuit or superior courts may dismiss, with or without notice, all actions or proceedings pending in which issue ha3 been joined and which are not brought to trial within five years after their commencement. See. 2832 of the same statutes provides that the court or judge may in discretion, and upon just terms, and within a year after notice, relieve a party from any judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The order of dismissal was properly made under the first section cited. All the facts required by the section then appeared without dispute. It appeared to be a case of sheer and inexcusable neglect. But when the application to vacate the order was made other facts appeared, which were undisputed and very persuasive. These facts were that the action was noticed for trial in August, 1898, and that negotiations for settlement were then entered into which lasted for several months; that in February, 1902, on request of one of the defendant’s attorneys, a written stipulation was made, continuing the-case over the then approaching March term, and placing it on the calendar for the September term; that at some time prior to the last-named term, the plaintiff’s attorneys, upon request of one of the defendant’s attorneys, consented that the case might go over that term; and that the plaintiff’s attorneys duly noticed it for trial at the March term, which was the next term following the September term. The March term, 1902, was within the five-year limit; the September 336 term, 1902, and. the March term, 1903, were beyond the limit. Thus it appears that the plaintiff’s attorneys agreed to. a continuance over the last term within the five-year limit at the request of and for the convenience of the defendant’s counsel; that counsel on both sides agreed to place the case on the calendar of the first term beyond the five-year limit, and that plaintiff’s counsel consented to continuance over that term to accommodate defendant’s counsel. These facts can leave no reasonable doubt as to the plaintiff’s right to be relieved from the order of dismissal. The statute referred to (sec. 2811a) was passed to punish the suitor who sleeps away his day in court, and give trial courts a certain and speedy means of clearing the records of mere deadwood, not to turn out of court a suitor who, though ready to proceed seasonably, has consented to delay in order to' accommodate opposing counsel, as was shown to be the case here. This proposition seems too plain for extended discussion. The complaint was duly verified, and stated a cause of action. No further showing of merits was necessary. The court abused its discretion in not vacating its order of dismissal. By the Court. — Judgment reversed, and action remanded with directions to grant the plaintiff’s motion to vacate the order of dismissal upon such terms as may be just, and for further proceedings according to law.