Dorcy v. Brodis

LORIGAN, J.

This, is an appeal by plaintiff from an order dismissing his motion for a new trial.

The action was brought to quiet title to a tract of land in the county of Santa Cruz, in which judgment was rendered in favor of the defendants and against plaintiff. In due time and on May 18, 1905, plaintiff gave notice of intention to move for a new trial. Thereafter, on June 1, 1905, his counsel served on the attorney for defendants what purported to be a statement in support of said motion. On the thirty-first day of August thereafter, defendants prepared and served upon plaintiff their proposed amendments to such statement, subject to objections interposed and saved therein against the settlement of said statement on the ground that it was a mere skeleton statement, inaccurate and incorrect in every material particular, and that it was sham and not prepared or proposed in good faith. Thereafter, defendants gave notice of a motion to dismiss, plaintiff’s motion for a new trial on the same grounds urged against the settlement of the statement. This motion came on to be heard on September 9, 1905, and was by the court denied. Subsequently, and on December 29, 1905, defendants again gave notice of motion to dismiss said motion for a new trial, to be heard January 2, 1906, and among other-grounds, upon the ground that the plaintiff had failed to-prosecute his motion for a new trial with due diligence. The matter was presented and heard upon affidavits of the-

[675]

respective attorneys in the action and the proceedings in the cause, and after due consideration was granted by the trial court, and plaintiff appeals.

It is insisted by the appellant that the court abused its discretion in granting the motion to dismiss.

In

Galbraith

v.

Lowe,

142 Cal. 296, [75 Pac. 831], it is said: “A motion for a new trial is an independent proceeding in an action, in which the burden of acting is at all times upon the moving party. ... It is the moving party who is the actor in the proceeding and who is seeking the settlement of the bill of exceptions and the determination of the motion for a new trial, and it devolves upon him to proceed with diligence. . . . The power to dismiss a motion for a new trial on the ground that the same has not been prosecuted with due diligence being conceded, the determination of the question as to whether there has been due diligence is one necessarily largely within the discretion of the trial court.” (See, also,