Potts v. Starr, 9509

• Decision Date: 17 November 1955
• Docket Number: No. 9509,9509
• Citation: 76 S.D. 91,72 N.W.2d 924
• Parties: W. M. POTTS, Plaintiff and Appellant v. Clarke STARR, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 924

72 N.W.2d 924

76 S.D. 91

W. M. POTTS, Plaintiff and Appellant v. Clarke STARR, Defendant and Respondent.

No. 9509.

Supreme Court of South Dakota.

Nov. 17, 1955.

W. M. Potts, Mobridge, for appellant.

Jackson & Krause, Lemmon, for respondent.

SICKEL, Judge.

This action was commenced by W. M. Potts, as plaintiff, against Clarke Starr, as defendant, for cancellation of a farming contract and for damages for failure to perform the contract. Defendant answered alleging compliance with the terms of the contract and partial settlement. The answer also alleges fraud and laches on the part of the plaintiff. On September 14, 1954 defendant served notice of motion to dismiss the action on the ground of unreasonable neglect on the part of the plaintiff to proceed with the cause of action. The motion was heard on September 21, 1954 and was granted on October 5, 1954. The order provides for dismissal of the action without prejudice if terms of $100 be paid within thirty days, and for dismissal on the merits if such terms be not paid. The terms were not paid and plaintiff appealed from the order.

Appellant contends that the delay in proceeding with the action after it had been commenced and was at issue did not constitute ground for the order of dismissal.

SDC 33.1704(4) provides: 'The Court may also dismiss the complaint, with costs in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to * * * proceed in the cause against the defendant or defendants served'.

Under this statute 'unreasonable neglect' on the part of the plaintiff to proceed in the pending cause is a ground for dismissal of the complaint. Welch v. McCoy, 40 S.D. 273, 167 N.W. 159. Unreasonable neglect and unreasonable delay are of the same meaning and both depend upon the particular facts and circumstances to which they are applied. Gunvordahl v. Knight, 73 S.D. 638, 47 N.W.2d 561. As they appear in the above statute they imply omission to do something 'which the party might do and might reasonably be expected to do towards vindication or enforcement of his rights'. Wynne v. Conrad, 220 N.C. 355, 17 S.E.2d 514, 518.

The record shows that the contract was dated April 12, 1948 and expired on March 1, 1953. The action was commenced on August 21, 1950 and defendant's answer was served September 20, 1950. More than four years elapsed from the time issue was joined and the date of the order of dismissal. During that period of time nine regular terms of circuit court were held in Dewey county. We must assume that jurors were summoned, or would have been summoned to try this case if notice of trial had been served and filed. The burden was upon plaintiff to proceed with his action. Under the circumstances we cannot say that the circuit court erred in finding that this delay was unreasonable and negligent.

Appellant contends that defendant had the right to give notice of trial and that he is equally responsible for the delay in bringing the case to trial. The statute does not impose upon defendant the duty to serve notice of trial, and failure to do so does not excuse the plaintiff from the duty to proceed, which is placed upon him by SDC 33.1704(4).

Appellant also opposed the dismissal of the action on the ground that he desired to examine defendant as an adverse witness before trial, but had difficulty in locating him. On October 25, 1950 appellant wrote defendant's counsel stating that he wanted to cross-examine de...