Reed v. Rose

McNUTT, J.,

pro tem.

Appeal from a judgment of dismissal for want of prosecution.

The provisions of the code relating to the power to set aside dismissals are remedial, intended to be liberally

[122]

construed and applied by trial courts to the end that meritorious trials may be had rather than that snap or default judgments prevail. Equally recognized and established is the rule that when a trial court has acted thereunder, its determination will be disturbed only where an abuse of its discretionary power is manifest. The typical case wherein relief from one’s own delinquency is sought is of a person sued, of course

in invitum,

who has failed', perhaps from an inadequate appreciation of a situation forced upon him, to seek timely advice or protection. Here, however, we have an actor or aggressor, a plaintiff, so unconcerned over his own invocation of judicial action to redress asserted injury that he not only let his ease lie dormant for years but, when called upon after order of dismissal, to explain his so-called “excusable neglect”, could not tell where he had been during much of the elapsed time, or what private enterprise incapacitated him to go forward with a public one which he had commenced. Excerpts from the record chronologically and generally significant demonstrate a sound exercise rather than an abuse of discretion by the trial court in denying relief under section 473 of the Code of Civil Procedure, on the grounds of the alleged mistake, inadvertence and excusable neglect of plaintiff personally, no question of due diligence of his counsel, Mr. Sawyer, being involved.

March 27, 1926, plaintiff sued for false arrest as of April 9, 1925. The complaints were signed by Mr. Sawyer, there being two, and the actions were consolidated for trial. (Tr., p. 32, fol. 96) ; February 25, 1929, defendant filed a memorandum to set ease for trial. The order of consolidation having been made, the court had set April 17, 1929, as the date of trial; notice of time of trial was served April 9, 1929, and thereafter filed (Tr., pp. 62 and 63); April 17, 1929, the ease was called for trial, plaintiff was absent and had no witness present; plaintiff’s attorney appeared and announced that he had no evidence to offer and that, since he had failed to legally demand a jury, he could not proceed, whereupon the court dismissed the actions (Tr., pp. 10-12, and pp. 77 and 79).