Netzley v. Hillstrom

MUSSELL, J.

The complaint in this malpractice action was filed on January 26, 1948. On November 20, 1952, defendants E. N. Hillstrom and C. A. Herrmann filed and served a notice of motion to dismiss the action on the ground that there had been an inexcusable delay of more than two years after the filing of said action in prosecuting the same. This motion was granted on December 5, 1952, and a judgment of dismissal was thereupon entered. Plaintiffs appeal from the judgment and the principal question involved is whether the trial court abused its discretion in dismissing the action.

It appears from the affidavit of counsel for defendants, filed in support of the motion, that this is an action to recover damages for personal injuries alleged to have been caused by the wrongful acts of defendants arising out of and in the course of medical care and treatment and in the performance of a surgical operation upon the plaintiff Lois Gwendolyn Netzley; that the wrongful acts are alleged to have occurred between the 26th day of September, 1946, and the 20th day of April, 1947; that the complaint was filed on January 26, 1948; that a first amended and supplemental complaint was filed on May 7,1948, a second amended and supplemental complaint was filed on June 19, 1948, a third amended complaint on July 28, 1948, a fourth amended complaint on October 15, 1948, and a fifth amended complaint on April 1, 1949; that

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on April 7, 1949, defendants demurred to the fifth amended complaint; that said demurrer was never brought on for hearing and no proceedings of any kind were had in said action from that date until February 29, 1952, when plaintiffs were granted permission to file a sixth amended complaint, to which defendants demurred and said demurrer was overruled; that on April 24, 1952, defendants filed their answer and said action became at issue, nearly four years and four months after the complaint was filed; that on or about October 6,1952, defendants filed a notice for security of costs and an undertaking was thereafter filed and served upon defendants on or about November 3, 1952; that on November 10, 1952, the plaintiffs filed a motion for an order advancing said case for trial upon the stated ground that the five-year period within which said action must be brought to trial would expire on or about January 24, 1953; that said motion has not yet been heard, ruled upon or otherwise disposed of; that defendants stated to affiant the facts and circumstances of the ease and that affiant believes that defendants have a good and valid defense to said cause of action upon the merits; that at all times since the filing of said action the defendants have been ready and willing to try it; that plaintiffs’ delay in bringing said cause to trial is wholly inexcusable and is not caused by any acts or omissions of the defendants; that since said action was filed memories of witnesses have become dim with the passage of time, witnesses have disappeared and defendant B. N. Hillstrom has moved from the state of California and evidence has been lost which, had said action been prosecuted to trial with reasonable diligence, would have been available to said defendants, and without which defendants will be prejudiced and placed under an undue hardship if said action is now permitted to proceed to trial after such long and inexcusable delay in the prosecution thereof.