Rathbun v. Sparks, 21195

• Decision Date: 13 March 1967
• Docket Number: No. 21195,21195
• Citation: 162 Colo. 110,425 P.2d 296
• Parties: Floyd L. RATHBUN, Plaintiff in Error, v. Everett H. SPARKS and Western Oil Fields, Inc., a corporation, Defendants inError.
• Court: Colorado Supreme Court

Page 296

425 P.2d 296

162 Colo. 110

Floyd L. RATHBUN, Plaintiff in Error, v. Everett H. SPARKS and Western Oil Fields, Inc., a corporation, Defendants inError.

No. 21195.

Supreme Court of Colorado, En Banc.

March 13, 1967.

Rehearing Denied April 10, 1967.

Clarence W. Button, Thomas K. Hudson, Alice Loveland, Denver, for plaintiff in error.

Frank A. Bruno, H. D. Reed, Denver, for defendant in error Western Oil Fields, Inc.

Petersen, Evensen & Mattoon, Pueblo, for defendant in error Everett H. Sparks.

FRANTZ, Retired Associate Justice. ^*

This is the latest chapter to come before this court in the continuing story of litigation involving Mr. Rathbun and Western Oil Fields, Inc. (Western). In it we find Rathbun suing Western and Mr. Sparks for some $5,000,000 in damages which are alleged to have been caused by an illegal conspiracy between them to keep certain corporate stock out of the possession and control of Rathbun.

Prior litigation in the federal courts resulted in the enforcement of an arbitration award purporting to settle the disputes between Rathbun and Western. Whether settlements thus previously compassed between the parties bar any present claims is an issue we find unnecessary to consider.

The present suit was filed by Rathbun's then attorneys on December 28, 1959 in the district court in Pueblo. After some preliminary skirmishes covering precisely two years, the matter became at issue on December 28, 1961. On April 20, 1962 depositions taken by Rathbun were filed with the court, and from that time until August 21, 1963 the civil docket book of the district court reflects no activity on Rathbun's behalf.

Approximately 15 months after Rathbun's attorneys filed their depositions, i.e., on July 8, 1963, Western filed a motion to dismiss under Rule 12 of the trial court's rules, which reads as follows:

'Dismissal for Failure to Prosecute.

'The Clerk of this court shall from time to time report to the Judges such cases as may be pending in their respective Division in which No progress has been made and entered of record for a period of one full year. Thereupon it may be ordered that the Clerk give notice to the attorneys of record, if any, otherwise to the litigants, to appear and show cause why an entry of dismissal should not be made, which notice shall be served by mailing to the last known post office address of the party to be served. At any time within thirty days from the mailing of any such notice any attorney or litigant may appear and show cause in writing why such case should not be dismissed. Upon expiration of thirty days from the time of mailing any such notice, the Clerk shall report to the Judge of the Division in which the case is pending whether any showing has been made in response to such notice, and, if no showing has been so made, said action shall forthwith be dismissed; or, if the showing made is, in the opinion of the Judge, insufficient to constitute a good reason for the delay, the case may thereupon also be dismissed for failure to prosecute. Cases may also be dismissed under this rule by either of the parties in a case filing a motion to dismiss and serving forty-eight hours' notice upon the adverse party, or his attorneys of record, of the hearing of such motion.'

After Western filed its motion to dismiss, two of Rathbun's attorneys of record filed statements advising the court that, while they were still attorneys of record, Rathbun had told them of his desire to obtain other counsel and that this arrangement was satisfactory to them provided they were paid for their services rendered. The court set December 9, 1963 as the hearing date for the motion to dismiss and no further activity on behalf of the plaintiff is reflected in the civil docket book until that date when Rathbun's present counsel entered their appearance and opposed the motion.

On October 3, 1963 Sparks filed his motion to dismiss for failure to prosecute. However, he specifically reserved a cross-claim on an alleged contract of indemnification for costs in the suit.

A hearing was held on the motions to dismiss on December 9, 1963, and Rathbun opposed them with his testimony and that of one of his attorneys. The tenor of this testimony was that although the civil docket book did not mirror it, Rathbun, as distinct from his attorneys, claimed he had diligently endeavored to go forward with his suit. Additionally, it was cited as an excusing factor that a backlog on the court docket had developed, due to the illness of one judge and the campaign for election of another. The attorney testified that Rathbun had been eager to proceed but that the failure to progress was not the fault of any of the attorneys connected with the case.

Western and Sparks argued that Rathbun was guilty of laches and dilatoriness in not urging the attorneys that paraded through the case to prosecute the action. The reasons for delay, they said, were actually grounded in Rathbun's unwillingness to pay his attorneys. As for the court's ability and willingness to proceed, they point out that no effort whatsoever was made to set the matter for trial and that therefore the crowded docket cannot be blamed for any delays.

After hearing both testimony and argument, the court took the matter under advisement and on December 17, 1963 entered an order dismissing the suit. The court found:

'* * * that even though some dissatisfaction may have arisen between plaintiff and some of his counsel, he was, from the commencement of this action to the present time, represented by one of his original counsel,...