State ex rel. Forrestal v. Eschweiler

Marshall, J. Did the lower court err in refusing to dismiss the actions under sec. 3012, Stats., providing as follows: “In every case in error or on appeal in which the supreme court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceeding had thereon within one year from the date of such ■order in the supreme court, or in default thereof the action shall be dismissed, unless, upon good cause shown, the court ■shall otherwise order. It shall be the duty of the losing party in any action or proceeding when a judgment or order in his favor in the court below is reversed by the supreme court on the appeal of the opposing party to pay the clerk’s fees on such reversal, procure the record in said cause to be remitted to the trial court and bring the cause to trial within one year after such reversal, unless the same be continued for cause, and if he fail so to do, his action shall be dismissed” ? That section, without change so far as concerns this case, has been in force for many years. It has been several times construed, particularly in Raymond v. Keseberg, 98 Wis. 317, 73 N. W. 1010; Christianson v. Pioneer F. Co. 101 Wis. 343, 77 N. W. 174, 917; State ex rel. Mitchell v. Johnson, 105 Wis. 90, 80 N. W. 1104; Sutton v. C., St. P., M. & O. R. Co. 114 Wis. 647, 91 N. W. 121; Eisentraut v. Cornelius, 147 Wis. 282, 133 N. W. 34. [30] The terms of the law are plain. The first clause, in the-event of the record upon any appeal not having been transmitted to the trial court and proceedings had in the case in-such court within one year after reversal, requires the cause-to be dismissed “unless otherwise ordered” “for good cause-shown.” The duty to act is placed upon the court. It may be exercised without any motion in that regard, though a request and unreasonable denial thereof must precede coercion to secure action. The last clause of the section imposes the-duty of procuring seasonable return of the record, and bringing the cause to trial within the year period on the losing, party upon the appeal, unless the action “be continued for cause” and, in case of default, not characterized by “a continuance for cause” the duty devolves upon the court to dismiss “his action,” — evidently referring to such dismissal as will deny to the defaulting party further use of the court’s jurisdiction in the action; but without prejudice to the party not in default. The court might “otherwise order” than to dismiss under the first clause of the section as regards the party not in default, and it might refuse to dismiss under the second clause, in case of a continuance, preventing the party upon whom the duty is imposed of bringing the cause to trial within one year after reversal. Just what will justify the court in retaining the action under either the first or second clause, need not be determined here. The words “unless continued for cause” in the second clause, doubtless refer to a continuance preventing the person whose duty it'is to bring the cause for trial within the year period from doing so, or to some excuse for the default. What will so excuse in any particular case, as well as what will justify retention of the cause after the year period under the first clause must necessarily depend upon the particular facts of the particular case, though mere financial inability of the party required to be the actor in the matter would not suffice as the 'court has previously held. That the right to dismiss under the statute may be lost by [31] waiver bas been repeatedly held, as tbe cited cases amply show. What will 'so operate in any case must necessarily depend upon the characterizing circumstances. Conduct of the party, seeking to enforce the statute, prior to the application for a dismissal, inconsistent with intention: to claim the statutory right, would, clearly, operate as a waiver upon the ground •of an implied intention in that regard. Whether there has been such inconsistent conduct in any case would be dependable upon a determination of matters of fact and the application of sound judicial discretion thereto. In these cases, as the trial court viewed the records, and had reasonable ground therefor, the active attorney for plaintiffs in the actions had good reason to believe, and did believe, that the statutory diligence in bringing the action on for a new trial would not be insisted upon, and he relied thereon,— moreover, that there was an agreement between, counsel for the respective parties as to setting the causes down for trial some two months after expiration of the year period; that the attorney for the plaintiffs, in good faith, relied thereon and proceeded, diligently, under all the circumstances, to create a condition precedent to such trial which he believed, and had good reason to believe, that both sides desired to bring about. The conclusions of the trial court respecting the controlling facts, not being contrary to the clear preponderance of the evidence, must be regarded as verities. That the alleged agreement between counsel was not reduced to writing so as to be legally binding, is of little consequence. If it were made, expressly or by implication from conduct, it was within the competency of the trial court to give effect to it in furtherance of justice. It follows, therefore, that the demurrers to the returns must be overruled and, as the whole subject on the merits is evidently before us, that the proceedings in each matter must be dismissed with costs. By the Court. — So ordered.