Cooper v. Odom, 1

• Decision Date: 20 November 1967
• Docket Number: No. 1,CA-CIV,1
• Citation: 433 P.2d 646,6 Ariz.App. 466
• Parties: Gillon B. COOPER and Marjorie D. Cooper, and Milburn Cooper, Trutee, Appellants, v. W. W. ODOM and Madge Odom, husband and wife, Appellees. 466.
• Court: Arizona Court of Appeals

Page 646

433 P.2d 646

6 Ariz.App. 466

Gillon B. COOPER and Marjorie D. Cooper, and Milburn Cooper, Trutee, Appellants, v. W. W. ODOM and Madge Odom, husband and wife, Appellees.

No. 1 CA-CIV 466.

Court of Appeals of Arizona.

Nov. 20, 1967.

Rehearing Denied Dec. 5, 1967.

Review Denied Jan. 16, 1968.

Clarence O. Fehling and Milburn N. Cooper, Phoenix, for appellants.

Lewis, Roca, Beauchamp & Linton, by John J. Flynn and Roger W. Kaufman, Phoenix, for appellees.

STEVENS, Judge.

Two questions are presented to the Court by this appeal. First, did the trial court abuse its discretion in granting the defendant's motion to dismiss for want of prosecution? Second, if the first question is answered in the affirmative, should this Court reverse the denial of the plaintiffs' motion for summary judgment and direct that the motion be granted?

The plaintiffs, who are the appellants in this Court, filed an action on contract for an accounting of the proceeds of a business arrangement. A.R.S. Section 12--548 is the Arizona Statute of Limitations applicable to this matter. This Section reads as follows:

' § 12--548.

'An action for debt where indebtedness is evidenced by or founded upon a contract in writing executed within the state shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward.'

The action was commenced on 19 February 1958 within the six year period. The formal written order granting the motion to dismiss for want of prosecution was signed and filed on 9 May 1966.

Before a detailed examination of the record, it is appropriate for us to consider the meaning of the statutory language 'commenced and prosecuted'. This language does not mean that the case must be brought to a conclusion in the trial court within the six year period. It means that a suit must be commenced within the six year period and must thereafter be diligently prosecuted. W. T. Rawleigh Co. v. Spencer, 58 Ariz. 182, 118 P.2d 674 (1941) and Baca v. Bank of America Nat. T. & S. Ass'n, 99 Ariz. 352, 409 P.2d 52 (1965).

After the complaint was filed an served, a preliminary motion was filed and granted resulting in the disclosure of certain documents relied on by the plaintiffs. Thereafter a motion to set was promptly filed by the plaintiffs. Historically it should be noted that these matters transpired before the Uniform Rules of Practice of the Superior Court of Arizona, 17 A.R.S., were promulgated by the Arizona Supreme Court, said rules having become effective on 1 January 1962. As originally promulgated, they contained Rule V(j) which rule sets forth certain exemptions in relation to cases wherein a motion to set had been previously filed.

The initial trial date assigned for the trial of the cause was 20 May 1959. To this point the case had progressed in the normal pattern of civil cases in Maricopa County although the hearing on the preliminary motion was continued four times before it was argued.

Thereafter there followed a series of continuances. In some instances the record discloses a continuance by stipulation and in other instances the record is silent in this regard. There was numerous orders setting the case for trial each of which was vacated. A September 1960 setting was vacated due to the illness of the attorney for the plaintiffs. The file contains a letter request from the attorney. The case was reset for 1 February 1961. The record shows no further filings on behalf of the plaintiffs until 3 September 1963 and to intervening minute entries.

Plaintiffs served a request for admissions on 20 August 1959, the answers thereto were filed on 2 September 1959, but the request itself was not filed with the Court until 3 September 1963. The plaintiffs gave notice of the taking of the deposition of one of the defendants. The deposition was taken on 22 September 1959 and was filed on 29 September 1959 but the notice of taking was not filed until 3 September 1963. On 3 September 1963, in addition to the filing of the request for admissions and the notice of taking deposition, the plaintiffs filed a motion for summary judgment, which was not verified, to which motion a response was filed on 17 September 1963. On this last date the defendants also filed an accounting as of September 1959. The motion for summary judgment was denied on 29 October 1963 and the case was referred to the court administrator to be placed on the pretrial calendar. In the meantime, the new Uniform Rules of Practice had become effective.

We must again go back. On 31 December 1959, at the time of the order vacating the then current trial setting, it was ordered that the defendants make certain records available to the attorney and to the accountant for the plaintiffs. On 23 November 1965 a document was filed disclosing that these records were surrendered by the defendants on 11 February 1960 and that the records were retained by the attorney for the plaintiffs until 23 November 1965.

The plaintiffs next sought to revive the case on 15 July 1965 when they filed a motion to advance for a pre-trial setting and for a trial setting. This was followed by the defendants' first motion to dismiss for want of prosecution, the motion having been filed on 21 July 1965, on which date the case was permanently assigned to the Honorable Thomas Tang, one of the Judges of the Superior Court.

Shortly thereafter, an order was entered fixing the date of the pre-trial for 29 October 1965, and in the meantime the court entered an order denying the motion to dismiss. Both sides filed pre-trial memoranda as required by the rules and the case was set for trial for 29 November 1965. On stipulation, this date was changed to 5 January 1966 and upon a change of counsel, was further reset to 18 April 1966.

In the meantime and on 1 November 1965, the plaintiff filed a new motion for summary judgment, which was not verified, and this was followed on 5 January 1966 by the filing of the defendants' renewed motion to dismiss for want of prosecution. Both motions were argued and ruled upon by a minute entry order. There followed a motion for reconsideration and a ruling thereon. On 9 May 1966, the court entered a formal written order which was filed on the same day denying the motion for summary judgment, granting the motion to dismiss and dismissing the case. This appeal followed.

Plaintiffs urge that the advent of the Uniform Rules of Practice created confusion in the Superior Court and caused delay beyond control of the plaintiffs. It is noted that in December the case had been set for trial for 1 February 1961 and that the Uniform Rules did not become effective until 1 January 1962.

After the 1 February 1961 setting passed, the plaintiffs next took action on 3 September 1963 by the filing of a motion for summary judgment in relation to matters known by or available to the plaintiffs prior to the last previous trial setting. We cannot attribute this delay to the Uniform Rules of Practice. Again, there was a long delay before the plaintiffs sought to...