State ex rel. Johnstone v. District Court, Lewis & Clark County

• Decision Date: 04 December 1957
• Docket Number: No. 9792,9792
• Citation: 319 P.2d 957,132 Mont. 377
• Court: Montana Supreme Court
• Parties: STATE of Montana, ex rel. Alexander B. JOHNSTONE, Relator, v. DISTRICT COURT, LEWIS & CLARK COUNTY, et al., Respondents.

Page 957

319 P.2d 957

132 Mont. 377

STATE of Montana, ex rel. Alexander B. JOHNSTONE, Relator, v. DISTRICT COURT, LEWIS & CLARK COUNTY, et al., Respondents.

No. 9792.

Supreme Court of Montana.

Submitted on Rehearing Sept. 10, 1957.

Decided Nov. 14, 1957.

Rehearing Denied Dec. 4, 1957.

Floyd O. Small, and Clayton R. Herron, Helena, Floyd O. Small, argued orally, for relator.

Charles Davidson, Great Falls, Ralph J. Anderson and Stanley P. Sorenson, Helena, Ralph J. Anderson, argued orally, for respondents.

ANGSTMAN, Justice.

Relator seeks an appropriate writ to annul certain orders made by respondent court on January 11, 1957, and to prohibit respondents from further proceeding in district court cause No. 16386 except to enter judgment quieting title in favor of relator or to dismiss the action.

This court issued an order to show cause. On the return day, respondents filed a return and the matter was heard by this court.

The controversy arises out of proceedings in respondent court arising subsequent to the decision of this court in Sanborn v. Lewis & Clark County, 113 Mont. 1, 120 P.2d 567, being an action questioning tax title proceedings.

The petition shows that after the decision in that case, which was decided on October 2, 1941, and the rehearing denied January 3, 1942, the respondent court, the Honorable Antone J. Horsky presiding, entered an order on May 25, 1944, in conformity with this court's opinion requiring Sanborn to pay to Johnstone the sum of $1,213.41 theretofore deposited in respondent court for taxes, purchase price payments and improvements made by Johnstone before the trial of the action in respondent court and in addition the sum of $2,041.29, being additional taxes and payments made by Johnstone to the county after the case was tried in respondent court and before the order was made.

That order recited that 'if said plaintiff shall refuse and does not deposit said sum with the Clerk of the Court by June 20, 1944, this Court will enter judgment in accordance with the above-mentioned Section [being 2214, Revised Codes of 1935, now R.C.M.1947, Sec. 84-4158] quieting title in the defendant, Alexander B. Johnstone and against the plaintiff and will thereupon order the return of the present and existing deposit of $1,213.41 to be paid by the Clerk of the Court to said plaintiff, provided further that if said plaintiff deposits the sum of $2,041.29 with the Clerk of the Court by June 20, 1944, then this Court will enter judgment quieting title in the plaintiff, Bruce W. Sanborn and will order the original deposit of $1,213.41 plus the current deposit of $2,041.29, making a total of $3,254.70 to be paid to the defendant, Alexander B. Johnstone as provided by Section 2214.'

On June 8, 1944, Sanborn filed a motion to vacate and set aside the order of Judge Horsky upon the ground that it was made without notice to Sanborn or opportunity for a hearing and that it made no allowance to Sanborn for reasonable rental during the pendency of the action.

So far as the record shows there was no order made or applied for extending the time for the payments to be made 'by June 20, 1944.'

This motion to set aside the order of Judge Horsky was not brought on for hearing until January 11, 1957. When it was brought on for hearing Johnstone filed a motion to dismiss the cause for failure of Sandborn to comply with Judge Horsky's order of May 25, 1944, and for laches in prosecuting the cause. This motion was overruled and Sanborn's motion to set aside the order of Judge Horsky was sustained and Sanborn was directed to prepare and file a petition or claim for rentals and other offsets that he might claim to be owing him from Johnstone as against Johnstone's claim under R.C.M.1947, Sec. 84-4158.

Sanborn thereafter filed a petition for rentals which respondent court threatens to hear and consider. This petition claims rental of $500 per year, and a cost item of $211.41 which cost item was not objected to by Johnstone.

Relator questions the property of the order made by Judge Fall denying relator's motion to dismiss cause No. 16386, the order vacating the order of Judge Horsky and the order allowing Sanborn the privilege of filing a petition for rentals and other offsets.

The respondents in this proceeding have filed a return and answer to relator's petition. They contend that it raises questions of fact which must be resolved before the legal questions can be considered. Relator taken the view that no material fact questions are presented and that the legal questions are solvable on the record as made and on the uncontroverted facts. We agree with relator on this point.

The proceeding questions the right of Judge Fall to set aside Judge Horsky's order and to deny Johnstone's motion to dismiss the action.

Judge Horsky made the order pursuant to the mandate of this court. It ordered the deposit of $1,213.41, which deposit was upheld by this court, to be paid to Johnstone and then provided for an additional payment of $2,041.29, which the order recited was for the following purposes: $858.65 subsequent taxes and $1,182.64 subsequent payments made by Johnstone to the county on the contract of purchase.

R.C.M.1947, Sec. 84-4158, expressly authorizes the court to require the deposit of such additional taxes. It provides in part:

'In the final judgment the court shall also determine the rights growing out of any additional taxes on said property accruing or being paid by either party during the pendency of said suit and, in said suit, the court shall have complete jurisdiction to fix the amount of taxes which should have been paid and to determine all questions necessary in granting full relief, including the power, in appropriate cases to order any assessor or other tax officer to make and certify to the court a corrected or new assessment or to do any other act or thing necessary to enable the court to do complete justice in the premises. Errors may be reviewed on appeal from the final judgment.'

This court has expressly held that the purchaser from the county is entitled to have the order requiring a deposit to include all installment payments made to the county on the purchase price. Shull v. Lewis & Clark County, 93 Mont. 408-420, 19 P.2d 901, and see Larson v. Peppard, 38 Mont. 128, 99 P. 136, 129 Am.St.Rep. 630. Counsel for Sanborn do not question the right to add these amounts but assert that they may not be added without the right to offset rents without notice to Sanborn, which they allege was not given. It is questionable whether the want of notice would invalidate the order in its entirety, where as here part of it was valid and in conformity with the opinion of this court, and where as to some of the other items they were easily ascertainable or a matter of record and no showing was made that they were erroneous or that a different result would, should or could have been reached had notice been given.

Whatever may be the rule in that regard it is our view that the court acted without power and authority in setting aside the order of Judge Horsky some twelve years after the order was made and in the face of a pending motion to dismiss the action for laches in its prosecution.

It has long been recognized that the courts have authority to dismiss an action for lack of diligence in its prosecution. State Savings Bank v. Albertson, 39 Mont. 414, 102 P. 692. This is the rule throughout the county. 27 C.J.S. Dismissal and Nonsuit Sec. 65, p. 230; 30 C.J.S. Equity Sec. 115, p. 530.

Here the motion of Sanborn to set aside the order of Judge Horsky was not brought on for hearing until after the lapse of more than twelve years after it was filed. Courts have held a plaintiff guilty of laches in failing to prosecute his action with reasonable diligence on much shorter delay than that here. A few of the many cases so holding are the following: Raine v. Ennor, 39 Nev. 365, 158 P. 133 (nine years); Phillips v. Santa Ana Times, 18 Cal.App.2d 280, 63 P.2d 838 (three years); Congdon v. Aumiller, 79 Wash. 616, 140 P. 912 (seven years); Beaudette v. City of El Paso, Tex.Civ.App., 247 S.W. 895 (eight years); Lowe v. Ring, 151 Wis. 664, 139 N.W. 429 (five years); McGurren v. Noyes Bros. & Cutler, 65 N.D. 146, 256 N.W. 649 (five years); Hurley v. Farnsworth, 115 Me. 321, 98 A. 821 (five years); Wilensky v. Philadelphia Casualty Co., Sup., 131 N.Y.S. 549 (less than seven years).

It is contended that if Sanborn was guilty of laches so was Johnstone. This contention is without merit for the courts hold that while defendant has the right to call a motion of plaintiff on for hearing it is not his obligation to do so, but the obligation to prosecute the action with diligence rests with the plaintiff. Thus in Congdon v. Aumiller, supra, the court said: 'It seems consonant with reason that a plaintiff who hales a defendant into court assumes and, so long as he has the affirmative of the main issue, retains the duty of diligent prosecution. Neff v. Neff, 32 Wash. 82, 72 P. 1011; Arthur v. Washington Water Power Co., 42 Wash. 431, 85 P. 28; Rehmke v. Fogarty, 57 Wash. 412, 107 P. 184. As said by the Supreme Court of California in a case also closely analogous to this: "But it is said that it was not the duty of the appellants to have urged the hearing of the demurrer; that this should have been done by the respondents, who filed it; and hence that the court was wrong in assuming that the laches of the appellants justified a dismissal of the action. The appellants brought the action; it would seem that upon them rested the burden of prosecuting it to a finality, and that as a step in that direction, from the facts then appearing to the court, they should have taken measures to have the demurrers determined, so that the action could progress." [79 Wash. 616, 140 P. 914.] A number of cases are then cited to support the statement.

In Hayward Lumber & Investment Co. v. Greenwalt, 215 Cal. 655, 12 P.2d 445, 446, ...