Cremer v. Braaten

• Decision Date: 12 March 1968
• Docket Number: No. 11361,11361
• Citation: 151 Mont. 18,438 P.2d 553
• Parties: Bertha R. CREMER, Plaintiff and Appellant, v. Ed BRAATEN and Olga Braaten, his Wife, Defendants and Cross-Complainants and Respondent, v. CREMER RODEO LAND AND LIVESTOCK COMPANY, a corporation, Cross Defendant and Appellant.
• Court: Montana Supreme Court

Page 553

438 P.2d 553

151 Mont. 18

Bertha R. CREMER, Plaintiff and Appellant, v. Ed BRAATEN and Olga Braaten, his Wife, Defendants and Cross-Complainants and Respondent, v. CREMER RODEO LAND AND LIVESTOCK COMPANY, a corporation,

Cross Defendant and Appellant.

No. 11361.

Supreme Court of Montana.

March 12, 1968.

Rankin & Acher, Helena, Arthur P. Acher (argued), Helena, for appellants.

Anderson, Symmes, Forbes, Peete & Brown, Billings, Benjamin N. Forbes (argued), Billings, for respondent.

JOHN C. HARRISON, Justice.

This is an appeal from an order of dismissal entered in the district court at Big Timber, the Honorable Jack D. Shanstrom, district judge.

In this cause the complaint was filed on September 11, 1952. An answer and a cross-complaint against the Cremer Rodeo Land and Livestock Company was filed May 3, 1953. The plaintiff replied to defendants' answer and cross-complaint on May 23, 1953. During the period between the filing of the complaint and the plaintiff's reply in May 1953, depositions were taken of Bertha Cremer on February 13, 1953; the defendants on July 29, 1953; and Leo J. Cremer on August 22, 1953, all of which were filed on August 30, 1953. At that time the cause was at issue. Nothing was done to bring this case to trial for over twelve years.

In April of 1966 the matter was set for trial by order of the district court. The defendants moved to dismiss on the ground that plaintiff failed to prosecute her claim with reasonable diligence. Attorneys for the plaintiff and defendants both filed affidavits and thereafter the motion to dismiss was granted and an order of dismissal entered pursuant thereto. Upon motion of the plaintiff the order of dismissal was vacated in order that further argument could be had. Briefs were submitted and oral argument heard, and on May 26, 1967, the court concluded that the plaintiff had not prosecuted her case with reasonable diligence and entered a final order dismissing the action. The plaintiff then appealed setting forth as the sole issue that the court erred in granting the motion for dismissal of the above-entitled action.

It is within the discretion of the trial court to dismiss an action if it has not been prosecuted with reasonable diligence. It is presumed that the trial court acted correctly and its decision will not be overturned without a showing of an abuse of discretion. M.R.Civ.P., Rule 41(b); State Savings Bank v. Albertson, 39 Mont. 414, 415, 102 P. 692; Silver v. Eakins, 55 Mont. 210, 175 P. 876.

Plaintiff argues that the action could not be dismissed as defendant has shown no injury by the delay. When a plaintiff has slept on his cause for over twelve years the law presumes injury and places the burden on the plaintiff to show good cause for the delay. State ex rel. Johnstone v. District Court, 132 Mont. 377, 319 P.2d 957...