McAllister v. Erickson

• Decision Date: 18 November 1927
• Docket Number: 4831
• Parties: J. W. MCALLISTER, Respondent, v. JOHN A. ERICKSON and ERIC ERICKSON, Appellants
• Court: Idaho Supreme Court

261 P. 242

45 Idaho 211

J. W. MCALLISTER, Respondent, v. JOHN A. ERICKSON and ERIC ERICKSON, Appellants

No. 4831

Supreme Court of Idaho

November 18, 1927

ORDER OF DISMISSAL A FINAL JUDGMENT-MOTION TO VACATE-DISMISSAL FOR WANT OF PROSECUTION-NOTICE TO PLAINTIFF NOT REQUIRED.

1. An order of dismissal is a "final judgment" from which appeal may be taken.

2. Under C. S., sec. 6726, as amended by Laws 1921, chap. 235 maximum reasonable time within which to vacate judgment on ground that it was taken through mistake, inadvertence surprise or excusable neglect, where court had jurisdiction to make judgment and same was not wholly void, is six months from adjournment of term.

3. Where trial court dismissed case for want of prosecution, it was immaterial whether defendants were present on date of trial and presented motion for dismissal, under C. S., sec 6830, par. 3, or whether they subsequently during term presented such motion, since trial court has inherent power to dismiss case for want of prosecution.

4. Where it appeared that plaintiff was not attempting in good faith to press his action and where he failed to appear on date set for trial, after several continuances, court could without notice to plaintiff, and even without motion by defendant, dismiss action for want of prosecution, since suitors are bound to take notice of steps and proceedings in their causes, and it was duty of plaintiff, after setting of case for day certain, to be in court for trial on that date.

5. Where order dismissing action for want of prosecution was made in open court after plaintiff had failed to appear after several continuances and shortly before adjournment sine die, plaintiff was not entitled to be served with notice, since suitors are bound to take notice of steps and proceedings had in their causes, and it was duty of plaintiff after setting day certain to be in court for trial on that date.

6. Where court had jurisdiction to make order dismissing action for want of prosecution, it had no jurisdiction or power to vacate it on motion filed to reinstate case nearly a year from adjournment of term, under C. S., sec. 6726, as amended by Laws 1921, chap. 235.

APPEAL from the District Court of the Eleventh Judicial District, for Minidoka County. Hon. T. Bailey Lee, Judge.

Appeal from an order reinstating action after dismissal. Reversed and remanded.

Reversed and remanded, with instructions. Costs awarded to appellants.

W. W. Mattinson, for Appellants.

Application to vacate, on the ground of inadvertence, surprise, excusable neglect or mistake, an order of dismissal for want of prosecution, must be made within six months from the adjournment of the term at which order was made and entered. (C. S., sec. 6726, as amended by Sess. Laws 1921, chap. 235, p. 526.)

Where such application is made and filed nearly a year after the adjournment of the term, the court is without power or jurisdiction to vacate the order of dismissal and reinstate the cause. (Vane v. Jones, 13 Idaho 21, 26, 88 P. 1058; Bunnell & Eno etc. Co. v. Curtis, 5 Idaho 652, 659, 51 P. 767; Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; Chandler v. Probate Court, 26 Idaho 173, 141 P. 635; Paul v. Paul, 28 Ariz. 598, 238 P. 399.)

Where the litigant making such application bases it on the ground of neglect of his attorney, he must show that he himself is without neglect or default in the case. (C. S., sec. 6726, as amended by Sess. Laws 1921, chap. 235, p. 526.)

Harmon E. Hosier, for Respondent.

Defendants failed to comply with statute in the dismissal of this action (C. S., sec. 6380) for want of prosecution.

If defendants were not present at the time that the case was set for trial to make their request of the court for dismissal for want of prosecution, then they must serve notice upon the adverse party that they will request the dismissal of the action for want of prosecution. (C. S., sec. 7196.)

C. S., sec. 6726, does not apply in this case because the judgment was void and should be set aside by the court at any time the court's attention is called to the fact.

ADAIR, Commissioner. Featherstone, Babcock, CC., Wm. E. Lee, C. J., Budge, Givens and Taylor, JJ., concurring. T. Bailey Lee, J., disqualified.

OPINION

ADAIR, Commissioner.--

On September 20, 1922, the respondent commenced an action against appellants. After issue was joined, the cause was continued from time to time until the February, 1924, term of court, when it was set down to be tried by jury on March 5, 1924, on which date neither the respondent nor his attorney appeared, and the trial was passed. On March 17th, by order entered in the minutes of the court, the action was dismissed for want of prosecution. The term of said court ended March 18, 1924. On March 14, 1925, respondent filed a motion to reinstate the case. The motion was resisted by appellants, but after a hearing thereon the court vacated the judgment of dismissal and this appeal is from such order.

The only assignment of error necessary to be considered here is that the court was without jurisdiction or power to make the order reinstating the action. C. S., sec. 6726, as amended by chap. 235, Sess. Laws of 1921, provides in effect that the court may, in its discretion, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and that the court may grant such relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term. This section further provides that in case a party, otherwise without fault, but through the neglect of his attorney, has had judgment or order entered against him, the court shall set the same aside, upon application filed within the time above specified.

Nearly a year had elapsed after the adjournment of the term during which the order of dismissal had been entered before the filing of the motion to vacate such order and reinstate the cause. An order of dismissal is a final judgment from which an appeal may be taken.

In construing sec. 6726, supra, this court has repeatedly held that if it was within the power and jurisdiction of the trial court to make the judgment or order entered, and the same was not wholly void, the application for relief therefrom must be made within the time prescribed in said section. The maximum reasonable time within which to move to vacate the judgment is six months from the adjournment of the term. (Chandler v. Probate Court, 26 Idaho 173, 141 P. 635; Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; Vane v. Jones, 13 Idaho 21, 88 P. 1058; Bunnell & Eno Inv. Co. v. Curtis, 5 Idaho 652, 51 P. 767.)

On the other hand, it has been held that this section does not govern if the court was utterly without jurisdiction to make the original order or judgment against which relief is sought. (Kline v. Shoup, 38 Idaho 202, 220 P. 45; Zaring v. Lavatta, 36 Idaho 459, 211 P. 557; Miller v. Prout, 33 Idaho 709, 197 P. 1023; Kerns v. Morgan, 11 Idaho 572, 83 P. 954.)

Therefore, the question here for determination is: Did the court have jurisdiction to make and enter the judgment of dismissal, without notice to respondent or his counsel? No notice of motion, or rule to show cause, was served, and respondent contends that, in the absence of notice, the order dismissing his action was void and beyond the jurisdiction of the court.

Paragraph 3 of C. S., sec. 6830, which provides for the dismissal of actions under various circumstances, reads as follows:

"By the court, when the plaintiff fails to appear on the trial and defendant appears and...