The opinion of the Court was delivered by
Mr. Justice Cothran.
This is an appeal from an order of his Honor, Judge Sease, dated December 13, 1927, refusing a motion by the plaintiff to redocket the case and granting a motion by the defendant to dismiss the case upon the ground of unreasonable delay and laches. The order of Judge Sease is formal, stating no more than is above stated.
The motions were made upon the complaint, answer, and affidavits submitted pro and con.
The motion of the plaintiff to redocket the case will fall by the disposition which we think should be made of the defendant’s motion to dismiss, and accordingly it only, will be discussed.
The facts as we gather them from the pleadings and affidavits, may be summarzied thus:
About the year 1901, the plaintiff, Stribling, and the defendant, Fretwell, entered into a business arrangement in reference to the purchase of certain lands lying on both sides of the Savannah River, some of it in Anderson County, S. C., and some in Elbert and Hart Counties in Georgia. It was conceived, as the event has justified, that the lands were valuable on account of the water rights which their ownership carried in a potential development of water power on the Savannah River.
The plaintiff, Stribling, contends that he was to furnish his services as a surveyor, and, in acquiring deeds to the property, the defendant, Fretwell, furnishing the necessary funds, and that he (Stribling), in consideration of his activities, was to be interested to the extent of one-fifth in the lands so acquired.
The defendant, Fretwell, contends that he employed Stribling to perform these services and paid him in full therefor; that there was no agreement between them that Stribling should acquire any interest whatever in the lands so acquired.
A number of tracts of land were thus acquired, some fifty-five or more, all of the titles to which' were made to Fretwell and paid for by him; Stribling not being named as grantee in any of them.
The parties being in disagreement as to the terms of the agreement between them, each maintaining his contention as above stated, on
December 24, 1904,
Stribling instituted an action in the Court of Common Pleas of Anderson County, against Fretwell, to recover one-fifth hndivided interest in the lands, or to have a trust to that extent declared therein in his favor. The defendant answered, - setting up his contention as stated, and the case, it appears, was docketed on Calendar 2.
On January 1, 1910, five years after the case was commenced and placed on the calendar, counsel for Stribling served upon opposing counsel notice of a motion for’ an order submitting certain issues to a jury, and on May 10, 1910, served a futher notice of a motion for issues out of chancery to a jury. Thereupon counsel for Fretwell served notice of motion for an order for such issues as they deemed proper. Nothing appears to have come out of either of these notices.
On January 14, 1911, six years after the institution of the action, the attorneys, looking to a trial of the case, entered into an agreement as to the introduction of certain deeds by record, instead of the production of the originals upon the trial.
The case was continued from term to term on the calendar, upon what gounds does not appear. At the June term of the Court in 1916, nearly twelve years after the action .had been commenced in December, 1904, his Honor, Judge
Prince, presiding, in the presence of counsel for Stribling, in open Court, ordered the case stricken from the docket, as it had been there long enough. There appears no other entry upon the calendar than “struck off,” although one of the attorneys for Stribling, who was present at the time, remembers very distinctly and swears positively, that the Judge coupled verbally with his order to strike out, “with leave to restore.”
On February 21, 1927, a sale of the property by Fret-well to certain parties, being Obstructed by the record of the notice
Us pendens
filed by Stribling in December, 1904, counsel for Fretwell served upon Stribling a notice that he would move the Court on February 24th for an order dismissing the complaint upon the ground of the failure of Stribling to prosecute the action and his laches in the matter. For some reason this motion was abandoned.
Notwithstanding this notice of counsel’s attitude towards the case, and assuming that Judge Prince’s order to strike off was accompanied by “leave to restore,” counsel for Stribling took no action in the premises until November, 1927, nearly a year thereafter, and eleven and a half years after the case had been stricken from the calendar. In the meantime, Fretwell and his counsel had naturally the right to consider that the case was dead.
The transactions involved occurred nearly a third of a century ago. The recollections of witnesses are dimmed by time. A material change has occurred in the ability of the defendant to present his defense to the Court. Three of his most important witnesses have died since the case was stricken from the docket. His counsel charged with the defense of the case at the time it arose have either died or been promoted to the bench and are no longer available. His documentary evidence was partly destroyed by a fire in the office of one of his-counsel in 1919. Other documentary evidence was retained by one of his counsel, now Judge Bonham, until he gave up the practice of law, at which
time, considering the case long since ended and the data not valuable, it was destroyed or lost. It would be most inequitable now to allow the plaintiff to have the advantage of such a natural and inevitable change in the ability of the defendant to present his defense.
The excuses of the plaintiff for his delay and laches are inadequate and without merit. They are: (1) The case was continued from term to term until 1916 by mutual consent. (2) There was an effort to arbitrate the issues. (3) That some people hoped to intervene and work out a settlement of the case. (4) That the property in question had not been .sold and was of peculiar nature. (5) That plaintiff never considered the case abandoned.
As to the first, it does not appear that defendant ever asked for a continuance and such continuances ceased in 1916.
As to the second, this effort seemed to be confined to the plaintiff. The defendant never consented to arbitrate and his attorneys do not recall any such effort. As to the copy of the letter of plaintiff’s counsel referring to an arbitration, it will be observed that there is no proof of its receipt by Gen. M. L. Bonham. No reply of the addressee was received. The letter was written on March 9, 1912, and states that, after ten days from that date, the effort to compromise “will be finally declared at an end.” It is hardly reasonable to suppose that any hope of compromise was entertained for fifteen years after such a letter, in the absence of any other testimony to that effect.
As to the hope of third parties intervening to work out a settlement: This hope seems to have been entertained by the plaintiff only.
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The opinion of the Court was delivered by
Mr. Justice Cothran.
This is an appeal from an order of his Honor, Judge Sease, dated December 13, 1927, refusing a motion by the plaintiff to redocket the case and granting a motion by the defendant to dismiss the case upon the ground of unreasonable delay and laches. The order of Judge Sease is formal, stating no more than is above stated.
The motions were made upon the complaint, answer, and affidavits submitted pro and con.
The motion of the plaintiff to redocket the case will fall by the disposition which we think should be made of the defendant’s motion to dismiss, and accordingly it only, will be discussed.
The facts as we gather them from the pleadings and affidavits, may be summarzied thus:
About the year 1901, the plaintiff, Stribling, and the defendant, Fretwell, entered into a business arrangement in reference to the purchase of certain lands lying on both sides of the Savannah River, some of it in Anderson County, S. C., and some in Elbert and Hart Counties in Georgia. It was conceived, as the event has justified, that the lands were valuable on account of the water rights which their ownership carried in a potential development of water power on the Savannah River.
The plaintiff, Stribling, contends that he was to furnish his services as a surveyor, and, in acquiring deeds to the property, the defendant, Fretwell, furnishing the necessary funds, and that he (Stribling), in consideration of his activities, was to be interested to the extent of one-fifth in the lands so acquired.
The defendant, Fretwell, contends that he employed Stribling to perform these services and paid him in full therefor; that there was no agreement between them that Stribling should acquire any interest whatever in the lands so acquired.
A number of tracts of land were thus acquired, some fifty-five or more, all of the titles to which' were made to Fretwell and paid for by him; Stribling not being named as grantee in any of them.
The parties being in disagreement as to the terms of the agreement between them, each maintaining his contention as above stated, on
December 24, 1904,
Stribling instituted an action in the Court of Common Pleas of Anderson County, against Fretwell, to recover one-fifth hndivided interest in the lands, or to have a trust to that extent declared therein in his favor. The defendant answered, - setting up his contention as stated, and the case, it appears, was docketed on Calendar 2.
On January 1, 1910, five years after the case was commenced and placed on the calendar, counsel for Stribling served upon opposing counsel notice of a motion for’ an order submitting certain issues to a jury, and on May 10, 1910, served a futher notice of a motion for issues out of chancery to a jury. Thereupon counsel for Fretwell served notice of motion for an order for such issues as they deemed proper. Nothing appears to have come out of either of these notices.
On January 14, 1911, six years after the institution of the action, the attorneys, looking to a trial of the case, entered into an agreement as to the introduction of certain deeds by record, instead of the production of the originals upon the trial.
The case was continued from term to term on the calendar, upon what gounds does not appear. At the June term of the Court in 1916, nearly twelve years after the action .had been commenced in December, 1904, his Honor, Judge
Prince, presiding, in the presence of counsel for Stribling, in open Court, ordered the case stricken from the docket, as it had been there long enough. There appears no other entry upon the calendar than “struck off,” although one of the attorneys for Stribling, who was present at the time, remembers very distinctly and swears positively, that the Judge coupled verbally with his order to strike out, “with leave to restore.”
On February 21, 1927, a sale of the property by Fret-well to certain parties, being Obstructed by the record of the notice
Us pendens
filed by Stribling in December, 1904, counsel for Fretwell served upon Stribling a notice that he would move the Court on February 24th for an order dismissing the complaint upon the ground of the failure of Stribling to prosecute the action and his laches in the matter. For some reason this motion was abandoned.
Notwithstanding this notice of counsel’s attitude towards the case, and assuming that Judge Prince’s order to strike off was accompanied by “leave to restore,” counsel for Stribling took no action in the premises until November, 1927, nearly a year thereafter, and eleven and a half years after the case had been stricken from the calendar. In the meantime, Fretwell and his counsel had naturally the right to consider that the case was dead.
The transactions involved occurred nearly a third of a century ago. The recollections of witnesses are dimmed by time. A material change has occurred in the ability of the defendant to present his defense to the Court. Three of his most important witnesses have died since the case was stricken from the docket. His counsel charged with the defense of the case at the time it arose have either died or been promoted to the bench and are no longer available. His documentary evidence was partly destroyed by a fire in the office of one of his-counsel in 1919. Other documentary evidence was retained by one of his counsel, now Judge Bonham, until he gave up the practice of law, at which
time, considering the case long since ended and the data not valuable, it was destroyed or lost. It would be most inequitable now to allow the plaintiff to have the advantage of such a natural and inevitable change in the ability of the defendant to present his defense.
The excuses of the plaintiff for his delay and laches are inadequate and without merit. They are: (1) The case was continued from term to term until 1916 by mutual consent. (2) There was an effort to arbitrate the issues. (3) That some people hoped to intervene and work out a settlement of the case. (4) That the property in question had not been .sold and was of peculiar nature. (5) That plaintiff never considered the case abandoned.
As to the first, it does not appear that defendant ever asked for a continuance and such continuances ceased in 1916.
As to the second, this effort seemed to be confined to the plaintiff. The defendant never consented to arbitrate and his attorneys do not recall any such effort. As to the copy of the letter of plaintiff’s counsel referring to an arbitration, it will be observed that there is no proof of its receipt by Gen. M. L. Bonham. No reply of the addressee was received. The letter was written on March 9, 1912, and states that, after ten days from that date, the effort to compromise “will be finally declared at an end.” It is hardly reasonable to suppose that any hope of compromise was entertained for fifteen years after such a letter, in the absence of any other testimony to that effect.
As to the hope of third parties intervening to work out a settlement: This hope seems to have been entertained by the plaintiff only. The defendant never had any such idea, and there was no basis for any such hope on the part of the plaintiff or his counsel. It will be observed that the affidavits referring to this matter are indefinite and inadequate. No such persons are named and no dates given. Neither is it
shown that any such idea was communicated to the defendant.
As to the fourth excuse: The property had not been sold when the suit was brought, and, if salability was a consideration, the proper thing would be to prosecute the action to a conclusion before a sale could or should be made.
As to the fifth excuse: It is too late now for plaintiff to make this claim. His actions and those of his attorneys, certainly since June, 1916, speak louder than his words. Cer.tainly all other parties concerned had a different opinion, notably defendant and his counsel, who did not even think it necessary or advisable to preserve the records in their possession. Such must have been the opinion of defendant’s other attorneys, who on February 24, 1927, gave notice to have a
lis pendens
canceled, and who doubtless upon investigation of the facts deemed the action abandoned and the prosecution of the motion unnecessary.
The law of the case appears clearly to sustain the order of his Honor, Judge Sease:
In
Langston v. Shands,
23 S. C., 149, it was contended that an action on a bond begun in 1870 and “struck off” or “adjourned off” in 1877 was still alive and in 1883 could be invoked to arrest the presumption of the payment of the bond. The Court said:
“Nearly seven years had elapsed since this entry was made on Calendar No. 1, before any further steps were taken to submit this claim to the Court. The case thus stricken from the calendar, or ‘adjourned off,’ cannot certainly have such dormant life as to justify a revival of it now. In
Kennedy v. Smith, 2
Bay, 414, it is said: ‘That all the cases quoted from 3 Blackstone’s Commentaries are strong in point, and prove that leaving a chasm in the proceeding, without regular continuance from time to time, will amount to a discontinuance. But the lapse of seven years is so great laches on the part of the plaintiff in this action that nothing on her part can cure it.’ ”
In
Babb v.
Sullivan, 43 S. C., 436, 21 S. E., 277, 279, a case cited in the brief of appellant’s attorneys, it was held that a delay of nine years and six months on the part of the defendant in moving to amend an execution amounted to such laches as effectively precluded him from obtaining the relief which he sought. The Court said:
“As we understand the doctrine of estoppel by laches, the facts in this case would justify us in holding that even a shorter delay than nine years and six months, inexcusable or unexplained, would have furnished the Circuit Court with sufficient grounds for refusing the order moved for. Delay is not the sole factor that constitutes laches. If it were so, some period fixed by statute or by the common law of the courts would afford a safe and unvarying rule. Laches connotes not only undue lapse of time, but also negligence, and opportunity to have acted sooner, and all three factors must be satisfactorily shown before the bar in equity is complete. Other factors of lesser importance sometimes demand consideration, such as the nature of the property involved, or the subject-matter of the suit, or the like. As a definition of laches,’ however, it is sufficiently correct to say that-it is the neglecting or the omitting to do what in law should have been done, and this for an unreasonable and unexplained length of time, and in circumstances which afforded opportunity for diligence.
“This definition will be found adequate as a test to be applied to the vast majority of cases. The doctrine embraced in it is in accordance with the principles and the practice of courts of equity, which have from the beginning held themselves ready to aid suitors who come in good conscience, good faith, and with diligence; and from the beginning they have discountenanced stale demands, and refused relief from the effect of negligence and inexcusable delay. * * *
“Laches being the resultant of a combination-of negligence, lapse of time, and loss of opportunity, by as much,
therefore, as negligence and knowledge of opportunity may vary in degree, by so much will the period of time vary in length. Speaking generally, it may be said that, the greater the negligence and the knowledge, the less will be the tipie, hence the great differences in the length of the delay which the courts have held to work laches, varying, from a few months to any number of years less than 20.”
In
Ex parte Baker (In re Buist, Rec., v.
Melchers) 67 S. C., 74, 45 S. E., 143, 145, an action in equity was begun in 1873 against the directors of an insolvent Building & Loan Association to recover losses of the association alleged to have been caused by the negligence of the directors. There were some proceedings in the cause, including an appeal to the Supreme Court, on the question whether Calendar No. 2 was the proper calendar. The remittitur went down in 1895. The cause remained dormant on the Calendar No. 2 until 1902. In that year the plaintiff moved to bring the cause to trial. The Circuit Judge dismissed the bill, for laches. The Supreme Court, affirming the lower court, said:
“Of course, now and then delays are very necessary, and no exception is taken to the same. But undoubtedly cases in equity are allowed by the parties to remain on the calendars of the Court undisposed of beyond all patience and all safety. The very object of courts is to provide an expeditious tribunal for the enforcing the rights or redressing the wrongs of litigants. To allow causes to remain on the calendar of the courts for years and years, with no movement by the parites, and without even an order being taken, presents a strange spectacle: Parties die, witnesses die or move away, records are misplaced, private energy is weakened, and thus the wheels of justice are clogged. When complaint is made to the Court of such slumbering and such ill effects resulting from such sleep, it may result, as in this case, with a wholesome effect to have an order passed dismissing such
cases for want of prosecution, or, in other words, because' of the laches of plaintiff litigants.”
In
McAuley v. Orr, 97
S. C., 214, 81 S. E., 489, 490, the action was to recover certain real estate and the rents therefrom. It was begun in 1889. There was a demurrer and some orders taken, and the case stayed on the calendar until 1897, when it was “stricken off with leave to restore.” It appeared on the calendar again in 1900. Nothing further was done until 1912, when plaintiff moved the Court for leave to serve a supplemental complaint and defendants moved to dismiss the action for laches. The Supreme Court cited the cases of
Babb v. Sullivan
and
Ex parte Baker, supra,
and held that the Circuit Judge was in error in refusing the motion to dismiss the case. The following finding of the Court is particularly applicable to the case at bar:
“Twenty-four years have passed since the commencement of this action. There is no satisfactory explanation on the part of the respondents of the delay of 21 years in the prosecution of this suit. Some of the parties are dead. The min- or defendants never were represented and knew nothing of the proceedings until notice was served on them of application for the last order made in the case. A number of witnesses, who could have explained the transactions, are dead, and there is no one to supply their testimony, and it would be a hardship on the defendants to now have to defend and resist a suit that they thought ended and abandoned after that great lapse of time. With the recollection and memories impaired, some witnesses dead, it would be almost impossible to find out what the truth is as to the issues involved; there is no question but that the plaintiffs are guilty of laches.”
The doctrine of these cases was reaffirmed and applied in the recent case of
Thomas v. MacNeill,
138 S. C., 86, 135 S. E., 643, 645, in which an action was held barred for laches and staleness of demand nineteen years after an alleged release was executed and five years after the death of the party executing it. The Court held:
“In our view, the petitioner is effectually barred by laches or the staleness of his demand. Strictly speaking, there are some points of distinction between laches and staleness of demand. ‘Laches’ has been defined as ‘the neglect for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done’ (21 C. J., 210) ; and as ‘the neglecting or the omitting to do what in law should have been done, and this for an unreasonable and unexplained length of time, and in circumstances which afforded opportunity for diligence’
(Babb v. Sullivan,
43 S. C., 436, 21 S. E., 277).”
Numerous other supporting authorities are cited in the opinion of the Court.
We think that the motion was largely in the discretion of the Court and that the circumstances fully justify his exercise of it.
The judgment of this Court is that the order appealed ' from be affirmed.
Messrs. Justices Brease and Stabrer concur.
Mr. Chiee Justice Watts and Mr. Justice Carter dissent.