Welch v. McCoy
| Decision Date | 26 March 1918 |
| Docket Number | No. 4219.,4219. |
| Citation | 40 S.D. 273,167 N.W. 159 |
| Parties | WELCH v. McCOY et al. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brown County; Thomas L. Bouck, Judge.
Action by James H. Welch, against E. F. McCoy and Anna E. McCoy. From an order dismissing the action, plaintiff appeals. Reversed.S. H. Cranmer, of Minneapolis, Minn., and Amos Goodman, of Aberdeen, for appellant.
L. W. Crofoot and Crofoot & Ryan, all of Aberdeen, for respondents.
Appeal from an order dismissing an action on the ground of unreasonable delay in the prosecution thereof. The action which was begun in April, 1903, was brought to determine adverse claims to real estate. The complaint was in the usual form. Defendants answered separately, denying the allegations of the complaint, and by way of counterclaim alleging title in themselves and a demand for affirmative relief. The record discloses that the cause was reached for trial on June 22, 1903, before the court without a jury, and that the taking of testimony was completed on that day. At the close of the evidence, plaintiff moved the court for judgment. The court reserved its decision until the final hearing of the case. No findings of fact or conclusions of law appear to have been proposed by either party, nor was there any argument or other proceedings had in the cause until the 17th day of February, 1917, when plaintiff's attorney served a notice of trial for a term of court beginning February 27th.
The defendant E. F. McCoy died December 31, 1913. The other defendant, Anna E. McCoy, was appointed administratix of his estate, which was fully administered upon and closed on November 5, 1914. Upon the calling of the calendar at the opening of the February, 1917, term, the death of the defendant McCoy was suggested; that his estate had been fully administered upon and the administratix discharged, and that neither the administratrix nor any other person had been substituted as defendant in the action. No substitution appears to have been asked by either party. The record discloses various negotiations and offers of settlement on the part of plaintiff which are set out in detail, all of which offers were rejected by defendants or withdrawn by plaintiff. Plaintiff's final offer was made in the fall of 1916, accompanied by a stipulation, which defendant's counsel were requested to sign, that the cause be finally submitted for decision upon a transcript of the evidence taken in 1903, in case the offer of settlement was rejected. Both the offer of settlement and the stipulation were rejected by defendant's counsel. No further action was taken by either party until service of notice of trial by appellant's counsel in February, 1917. On the last day of the February, 1917, term, appellant's counsel asked that a day be assigned for the trial of the cause, naming April 20th, when court would be in session, in reply to which respondent's counsel indicated that the day was satisfactory, but his consent thereto must be subject to his right to move for a dismissal of the action. The motion was heard by stipulation, on April 20, 1917, upon affidavits filed by both parties, and on April 21st the trial court made and filed its decision that plaintiff had been guilty of unreasonable neglect in the prosecution of the action, and that the action be dismissed.
[1][2][3] Subdivision 4, § 310, Code of Civil Procedure, provides that the court may dismiss the complaint in case of unreasonable neglect on the part of the plaintiff to proceed in the cause. It is appellant's contention that the trial...
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