HYDE ET UX v. Velvin

318 P.2d 269, 212 Or. 73, 1957 Ore. LEXIS 193

• Court: Oregon Supreme Court
• Decided: November 20, 1957
• Status: Published

Opinions

PER CURIAM.

The judgment roll in this case shows the following proceedings were had: December 1, 1953, the plaintiffs filed their suit against the defendant; preliminary motions attacking the complaint were disposed of, and on February 15, 1955, the defendant filed a general denial to the allegations of plaintiffs’ complaint, and this cause was at issue. On January 22, 1957, the trial court entered an order dismissing this cause for lack of prosecution; this order of dismissal was amended and, as amended, was filed March 14, 1957, the pertinent parts thereof reading as follows:

“Now at this time it appearing to the Court that the above entitled cause has been at issue since February, 1955, and that it has therefore been inactive for at least one year prior to November 13, 1956 and that the Clerk of this Court has given due and legal notice to the attorneys of record that unless some action was taken by January 20, 1957 said cause would be dismissed for want of prosecution; and

“IT FURTHER APPEARING to the Court that the above cause was set down for trial on the 21st day of November, 1955 and taken off the docket at the request of counsel for plaintiff, and that the case was again set for trial on the 23d day of April, 1956, and again taken off the docket at the request of counsel for plaintiff, and no good cause being shown why this case should not be dismissed for want of prosecution,

“IT IS THEREFORE CONSIDERED, ORDERED and ADJUDGED that the above entitled cause be, and the same hereby is dismissed for want of prosecution.

“IT IS SO ORDERED and this order be entered nunc pro time as of January 22, 1957.

“DATED at Canyon City, Oregon, March 13, 1957.

(sgd) E. H. HOWELL

Circuit Judge”

It does not appear from the judgment roll when or in what form a notice was sent to the plaintiffs’ attorneys that the cause would be dismissed, but on January 16, 1957, and at a time apparently subsequent to a notice sent by the clerk of the court and prior to the regular motion day of the court and order of dismissal, the plaintiffs notified the trial court that they believed they had “a good cause of suit” and they were “ready to go to trial.” Prom the amended order and correspondence between the court and counsel for plaintiffs, it appears the cause was dismissed pursuant to ORS 18.260, which reads as follows:

“Dismissal for want of prosecution; notice. Not less than 60 days prior to the first regular motion day in each calendar year, the clerk of the court shall mail notice to the attorneys of record in each pending case in which no action has been taken for one year immediately prior to the mailing of such notice, that each such case will be dismissed by the court for want of prosecution, unless on or before such first regular motion day application, either oral or written, is madé to the court and good cause shown why it should be continued as a pending case. If such application is not made or good cause shown, the court shall dismiss each such case. Nothing contained in this section shall prevent the dismissing at any time, for want of prosecution, of any suit, action or proceeding upon motion of any party thereto.”

It appears the trial court acted in this matter pursuant to statute and not by reason of its inherent power. Reed v. First Nat. Bank of Gardiner, 194 Or 45, 241 P2d 109. Thus, in this opinion, we are not passing upon the inherent power of the court over dismissals for lack of prosecution, nor are we passing upon the rights of a party where delay has been prejudicial.

The statute operates prospectively and, while it notes the delay of the past, that delay is not in itself sufficient to authorize a dismissal of the cause after the parties, either orally or in writing, and before the next regular motion day of the court, notify the court they have a just cause and are ready and willing to proceed promptly with the prosecution of their cause as directed by the court.

While we admire the motive of the able trial judge in trying to keep his docket current and strike the dead wood from the court calendar in order that justice be not delayed and diligent parties served, we are of the opinion that he erred in dismissing this suit and not setting it for trial as requested.

The cause is reversed and remanded for further proceedings not inconsistent with this opinion.