Perry v. Perkins

• Decision Date: 10 June 1952
• Docket Number: No. 7787,7787
• Parties: PERRY et al. v. PERKINS.
• Court: Idaho Supreme Court

Page 405

245 P.2d 405

73 Idaho 4

PERRY et al. v. PERKINS.

No. 7787.

Supreme Court of Idaho.

June 10, 1952.

William W. Barrett, Boise, for appellants.

Frank F. Kibler, Nampa, J. F. Martin, Boise, for respondent.

THOMAS, Justice.

On October 25, 1949 the plaintiffs below, appellants herein, filed a complaint containing some four separate causes of action to recover for personal injuries and damages to their automobile, arising out of an accident which occurred on January 1, 1948.

On November 17, 1949 a general demurrer to the complaint and to each cause of action therein, as well as a special demurrer for uncertainty, ambiguity and indefiniteness and for misjoinder as to the third cause of action, was filed. On July 1, 1950 the court made its order sustaining the special demurrer as to all causes of action, and the general demurrer as to the third cause of action, and in all other respects overruled the general demurrer and gave the appellants fifteen days in which to amend the complaint; thereafter, and on September 11, 1950, upon ex parte application, the appellants herein were granted an additional ten days in which to amend the complaint; there are no further or other orders pursuant to stipulation or otherwise extending the time to amend. Up to December 19, 1950 an amended pleading had neither been filed nor tendered for filing.

On December 19, 1950 respondent filed and served upon appellants a motion for dismissal without prejudice, on the ground that no amended complaint had been filed within the time ordered by the court or at all; on the same day appellants served upon respondent and lodged with the court an amended complaint, and on December 22, 1950 filed an application for leave to file the amended complaint, supported by the affidavit of counsel for appellants. Counter-affidavits were filed in opposition to the application for an order authorizing the filing of the amended complaint.

Both the motion to dismiss and the application for leave to file the amended complaint were heard at the same time by the court. On February 12, 1951 the court denied the application to file the amended complaint and granted the motion to dismiss without prejudice, and entered judgment of dismissal. The appeal is from the judgment of dismissal only. No error is assigned with reference to the ruling of the court on the demurrer.

The only question in this case is whether the action of the trial court in dismissing the complaint and entering a judgment of dismissal was proper and just under the showing and circumstances of the case; or whether the court, in the exercise of sound judicial discretion, should have refused to enter judgment dismissing the action. This inquiry thus is now directed at the property of the action of the trial court rather than its authority to enter judgment of dismissal.

It is universally recognized that a court has the inherent power and authority, in the absence of statute or rule, in the exercise of sound judicial discretion, to dismiss an action for failure to comply with an order of the court relating to pleadings filed or to be filed by the plaintiff, including an order requiring the amendment of his pleadings generally or with reference to making them more definite and certain. Cook v. Search, 100 Okl. 45, 226 P. 1039; Plummer v. Weil, 15 Wash. 427, 46 P. 648; Drake v. First Nat. Bank of Fort Scott, 33 Kan. 634, 7 P. 219; Bushnell v. Thompson, 133 Neb. 115, 274 N.W. 453; Northport Irr. Dist v. Farmers' Irr. Dist., 125 Neb. 607, 251 N.W. 174; Motowski v. People's Dentists, 183 Wis. 477, 198 N.W. 465; Ferson v. Armour & Co., 109 Neb. 648, 192 N.W. 125; Central Security Co. v. Milwaukee-Waukesha Brewing Co., 166 Wis. 249, 164 N.W. 994; Lovette v. Essig, 92 Mich. 461, 52 N.W. 750; Rudd v. City of Reading, 64 Ohio App. 308, 28 N.E.2d 768; Telch v. Hamburger, 259 Mass. 21, 155 N.E. 658; Nickerson v. Glines, 220 Mass. 333, 107 N.E. 942; Timmons v. Pine School Township, 22 Ind.App. 93, 53 N.E. 242; Application of Melvyne Realty Co., Sup., 82 N.Y.S.2d 850; Loudy v. Elcomb Coal Co., 298 Ky. 732, 183 S.W.2d 953; Graves v. Dakessian, Mo.Sup., 132 S.W.2d 972; Branson v. Yeary, 266 Ky. 527, 99 S.W.2d 707; Barnett v. Latonia Jockey Club, 249 Ky. 285, 60 S.W.2d 622; Rehkamp v. Martin, 198 Ky. 34, 247 S.W. 1115; Rapp v. Parker, 128 Ark. 236, 193 S.W. 535; Reid v. Lyttle, 150 Ky. 304, 150 S.W. 357; Howard v. Western Union Tel. Co., Ky., 76 S.W. 387; MacAdam v. Scudder, 127 Mo. 345, 30 S.W. 168; Curtis v. Jordan, 110 La. 429, 34 So. 591; see also 4 A.L.R.2d pp. 350-362; 27 C.J.S., Dismissal and Nonsuit, § 64 page 228; § 65 page 232.

All courts of this State have the power to compel obedience to their orders, Section 1-1603, I.C., and may, where not otherwise provided by statute or rule, adopt any reasonably appropriate means to enforce them, Section 1-1622, I.C.; and dismissal is an appropriate means to compel obedience. Greenhow v. Whitehead's, Inc., 67 Idaho 262, 175 P.2d 1007.

Both the motion to dismiss the action and to enter judgment of dismissal and the application for leave to file the amended complaint are made upon affidavits only; no witnesses were called or examined. Where this is so it is a rule of this court that it will make an original examination of the evidence as set forth in the record, as though the matter had never been heard or examined by the trial court, and will exercise its judgment and discretion as though the case were being presented in the first instance for determination here, because this court is in as favorable a position to consider the matter as was the trial court. Curtis v. Siebrand Bros. Circus & Carnival Co., 68 Idaho 285, 194 P.2d 281; Cleek v. Virginia Gold Mining & Milling Co., 63 Idaho 445, 122 P.2d 232; Boise Flying Service v. General Motors Acceptance Corp., 55 Idaho 5, 36 P.2d 813; Savage v. Stokes, 54 Idaho 109, 28 P.2d 900; see also Hall v. Whittier, 20 Idaho 120, 116 P. 1031; Parsons v. Wrble, 19 Idaho 619, 115 P. 8; Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Roby v. Roby, 10 Idaho 139, 77 P. 213.

In conformity with the rule as above set forth, we will proceed to examine the respective affidavits and exercise our own discretion as to whether or not, upon the showing made, the judgment of dismissal should have been entered.

The affidavit of counsel for appellant sets forth in pertinent part the following:

'* * * That the plaintiffs, Kenneth W. Perry resides at Nampa, Idaho and Lola Perry, since remarried, resides at Lewiston, Idaho. That Affiant failed to and neglected to file his Amended Complaint within the time prescribed by the Court, for the reason that he was unable to locate Lola Perry until or about December 13th or 14th, 1950. That plaintiff, Kenneth W. Perry suffered severe personal injuries in the accident, as a result of which he is still disabled, incoherent and at this time lacks memory as to some details necessary for the amendment of the complaint in the above entitled action.

'That on December 19, 1950, Affiant received defendants Motion to dismiss the above entitled action and Affiant immediately prepared in Amended Complaint to conform to the Court's Order without having had an opportunity to contact Lola Perry in the meantime. That said Amended Complaint was lodged with the Court at aproximately 11:15 A.M. o'clock on December 19, 1950.

'That Affiant believes that plaintiffs have a meritorious cause of action in the above entitled matter and that a dismissal herein would work a great hardship upon said plaintiffs.'

One of the attorneys for respondent filed an affidavit in opposition to the application for leave to file the amended complaint, in which he sets forth in pertinent part the following:

'That among other things plaintiffs relate in said affidavit of merits that one of the plaintiffs, to-wit: Kenneth W. Perry is still disabled, incoherent and lacks memory and that by reason thereof the obtaining of certain facts for preparation of the said amended complaints in said actions could not be obtained; and affiant alleges the facts to be that said Kenneth W. Perry is not an incompetent person, and that in fact he is and has been regularly and steadily employed by the Pacific Fruit Express Company, at its car repair shops in the City of Nampa, Canyon County, Idaho, and has been so regularly employed there and steadily for the past ninety days, and could have easily been interviewed by his legal counsel at a distance of only twenty miles from his office in Boise, Ada County, Idaho, and that on December 26th, 1950, this affiant made inquiry from said employer and was informed that said Kenneth W. Perry is carried on the active list of its employees and that he has been so regularly and steadily employed by said concern for more than ninety days last past;

'That said affidavit for leave to file said amended complaints discloses that Lola Perry one of said plaintiffs, has since divorced the said Kenneth W. Perry, and has remarried and resides at Lewiston in Nez Perce County, Idaho, and that said affidavit does not show or disclose any reason whatsoever why plaintiffs counsel has been unable to communicate with her by usual means of communication between Boise, Idaho and Lewiston, Idaho, and since the month of July, 1950, and said usual means of communication being the United States mail, long distance telephone and telegraphic services as existant between said places at all times since the month of July, 1950, and that the address and whereabouts of said Lola Perry, was at all times known to the said Kenneth W. Perry, and that ordinary inquiry by counsel would have disclosed the location and whereabouts of said person, if further or additional facts were necessary to secure such location and address, and that no fact or...