Zeis v. Fruehauf Corp.

Decision Date28 November 1972
Docket NumberNo. 153,153
Citation56 Wis.2d 486,202 N.W.2d 225
PartiesErnest J. ZEIS, Appellant, v. FRUEHAUF CORPORATION, a foreign corporation, Respondent.
CourtWisconsin Supreme Court

Charlton, Yanisch, Greco & Roffa, Milwaukee, for appellant.

Gibbs, Roper & Fifield, Milwaukee (Charles A. Kranz and Clay R. Williams, Milwaukee, of counsel), for respondent.


The trial court's order for dismissal came more than five years after the action was commenced by the service of the summons and complaint. Sec. 269.25, Stats., provides that:

'Dismissal for delay. The court may with notice dismiss any action or proceeding which is not brought to trial within 4 years after its commencement.'

Section 270.54, Stats., also confers dismissal power upon trial courts. That statute provides in part:

'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 serve the summons on other defendants or to proceed in the cause against the defendant or defendants served.'

We stated in Lawrence v. MacIntyre (1970), 48 Wis.2d 550, 555, 180 N.W.2d 538, and Latham v. Casey & King Corp. (1964), 23 Wis.2d 311, 314, 127 N.W.2d 225, that a trial court has the inherent power, quite aside from any of the time limits prescribed in the statutes, to dismiss an action for the failure to prosecute.

In any event, whether the order of the trial judge is based on statute or on the inherent power of the court, the motion to dismiss for want of prosecution is addressed to the sound discretion of the trial court and will be affirmed unless it is clearly shown that there was an abuse of discretion. Lawrence v. MacIntyre, supra, 48 Wis.2d p. 554, 180 N.W.2d 538; Taylor v. State Highway Comm. (1970), 45 Wis.2d 490, 494, 173 N.W.2d 707. An appellant who seeks to set aside such an order must show a "clear and justifiable excuse' for the delay.' Taylor, supra, p. 494, 173 N.W.2d p. 711; Lawrence, supra, 48 Wis.2d p. 554, 180 N.W.2d 538; Gawin v. Redevelopment Authority of Milwaukee (1971), 52 Wis.2d 380, 385, 190 N.W.2d 201; Condon Wrapping Machine Co. v. Racine Engine & Machinery Co. (1924), 183 Wis. 435, 436, 198 N.W. 268.

In this case the trial judge pointed out that, although a notice of trial was served upon defendant's counsel early in 1967, no other affirmative action was taken to move the case to the trial stage. In exercising his discretion to dismiss, the trial judge referred to secs. 269.25 and 270.54, Stats., and the rationale set forth in Lawrence v. MacIntyre. The plaintiff, at the time the motion was heard, offered no reason for his failure to take action to advance his case to trial. The record is barren of any suggestion that plaintiff even relied upon the filing of a notice of trial as justification for the delay in prosecuting his case. Under these circumstances, where no justification for the delay was shown, it would have been an abuse of discretion to fail to dismiss the action. On this appeal, however, the plaintiff takes the position that, as a matter of law, he had done all that was necessary to advance the case to trial. He contends that, by the filing of a notice of trial, he fulfilled his duty in advancing the case and that thereafter the burden of finally disposing of the action devolved upon the court and its clerk. He cites sec. 270.12(1), Stats.: 'When the notice of trial is filed with the clerk he shall place issues on the calendar . . ..' The same argument was posed and rejected in Wisconsin Lumber & Supply Co. v. Dahl (1934), 214 Wis. 137, 252 N.W. 714. In that case, the plaintiff had given notice of trial and also on several occasions visited the clerk's office and requested the case be set for trial. Although sec. 270.12(1), 1933 Stats., read, 'The clerk shall prepare a calendar for each term of the circuit court of all actions . . . as shown by the notices filed', the court held that the plaintiff had not taken reasonable steps to advance his case. The court stated that it was not the duty of the clerk "(to) bring cases on' for trial.'

The case of Ford v. James (1951), 258 Wis. 602, 46 N.W.2d 859, does not alter the holding of Wisconsin Lumber & Supply Co., for in Ford the court recited, 258 Wis., at page 605, 46 N.W.2d, at page 860, '(S)ufficient application was made to two separate judges of said court'. The facts also indicate that the delay was caused in part by a stipulation of the parties to stay the action pending another lawsuit, by the substitution of attorneys, and by the election of a new judge. Nothing in Ford v. James can reasonably lead to the conclusion that an attorney has used due diligence in advancing his case to trial merely by serving and filing a notice of readiness for trial. Moreover, we recently pointed out in the case of State v. Dickson (1972), 53 Wis.2d 532, 193...

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  • State v. Braunsdorf
    • United States
    • Wisconsin Supreme Court
    • October 28, 1980
    ...Co., 79 Wis.2d 260, 255 N.W.2d 511 (1977); Cukrowski v. Mt. Sinai Hospital, 67 Wis.2d 487, 227 N.W.2d 95 (1975); Zeis v. Fruehauf Corp., 56 Wis.2d 486, 202 N.W.2d 225 (1972); Lawrence v. MacIntyre, 48 Wis.2d 550, 180 N.W.2d 538 (1970), and recognize that the existence of a statute authorizi......
  • Marshall-Wisconsin Co., Inc. v. Juneau Square Corp.
    • United States
    • Wisconsin Supreme Court
    • June 11, 1987
    ...irrespective of whether the nonprosecuting party has brought motions for dismissal for failure to prosecute. Zeis v. Fruehauf Corp., 56 Wis.2d 486, 491-92, 202 N.W.2d 225 (1972). The reason is simple: as indicated in Neuhaus, it is not the defendant's duty to move forward with prosecution o......
  • Rush v. Sioux City
    • United States
    • Iowa Supreme Court
    • March 17, 1976
    ...6 Ariz.App. 466, 433 P.2d 646, 649; Krasner v. Verner Auto Supply, Inc., 130 Ga.App. 892, 204 S.E.2d 770, 772; Zeis v. Fruehauf Corporation, 56 Wis.2d 486, 202 N.W.2d 225, 227-228; where issues have become moot, Myers v. Polk Miller Products Corp., 201 F.2d 373, 376, 40 C.C.P.A. 739, 376 (1......
  • Marshall-Wisconsin Co., Inc. v. Juneau Square Corp.
    • United States
    • Wisconsin Court of Appeals
    • March 14, 1986
    ...they allegedly matured after the federal antitrust action was filed.18 See sec. 804.12(2)(a)3., Stats.19 Zeis v. Fruehauf Corp., 56 Wis.2d 486, 489, 202 N.W.2d 225, 226 (1972) (citations omitted).20 Id.21 Carlson Heating, Inc. v. Onchuck, 104 Wis.2d 175, 181, 311 N.W.2d 673, 676 (Ct.App.198......
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