Lee Doon v. Tesh (1901) · DecisionDepot

Lee Doon v. Tesh

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jan 22, 1901 No. Sac. No. 853.Published

Before: Chipman

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Holding. The court held that the trial court abused its discretion in denying the defendants' motion to dismiss the plaintiffs' pending motion for a new trial, as the plaintiffs failed to explain or excuse their decade-long neglect in prosecuting said motion.

Issues

Whether a prior order denying a motion to dismiss for lack of prosecution acts as res judicata to a subsequent motion based on continued neglect.
Whether the plaintiffs' failure to settle a statement for a new trial for over ten years constitutes inexcusable neglect warranting dismissal of the new trial proceedings.

Disposition. reversed

Quotations verified verbatim against the opinion

“We think the evidence adduced by defendants in support of their motion showed gross and inexcusable neglect on the part of plaintiffs”

“We think, however, that the court should have granted the motion to dismiss the proceedings taken under the motion for a new trial.”

Synopsis

The facts are stated in the opinion.

[407]

CHIPMAN, C.

Motion by defendants to dismiss for neglect to prosecute with diligence.

In 1882 plaintiffs brought the action to determine their right to the possession of certain mining ground as against defendants’ right to possession. The action was brought under section 2326 of the Revised Statutes of the United States. Defendants had judgment on demurrer in January, 1882. An appeal was taken to this court and the judgment was reversed as to one of the plaintiffs, with instructions to overrule the demurrer to his complaint with leave to defendants to answer thereto, and as to the other plaintiffs the judgment on the demurrer was affirmed. Subsequently, in 1886, the cause was tried by the court without a jury, findings made in favor of defendants, and it was adjudged that the plaintiff, as to whom the action remained, take nothing, and judgment was entered for defendants November 29, 1886. Plaintiffs served a statement on motion for a new trial August 13, 1887, proposed amendments to which Were served by defendants September 2, 1887. No further steps were taken on the motion for new trial. The judge who rendered judgment and made the findings went out of office, and on July 3, 1897, a motion was made before his successor by defendants’ counsel “to dismiss proceedings now pending in said action.” The notice of the motion stated that “said motion will be made upon the records, files, and papers in said cause and upon the ground of plaintiffs’ neglect to prosecute said action with diligence.” The motion was to dismiss all proceedings now pending in the action, and the court denied the motion April 13, 1898, and no appeal was taken from the order. Defendants, on April 20, 1900, gave notice of a motion “to dismiss said cause and all proceedings now pending therein,” stating that “said motion will be made upon the records, files, and papers in said cause, and upon the ground that plaintiffs have neglected and refused to prosecute said action in refusing and neglecting to settle the statement on motion for a new trial, or to take any step for its settlement for the period of ten years.” A motion was made in accordance with the notice, and on May 8, 1900, was denied and the appeal is from this order.

[408]

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ment is not agreed to by the adverse party, the latter must, within a certain time, serve his proposed amendments. If the amendments ar'e adopted, the statement shall be amended accordingly, and then presented to the judge for settlement; if not adopted, the moving party must present the proposed statement and amendments to the judge (Code Civ. Proc., sec. 659, subd. 3); and thereupon the proceedings for the settlement of the statement shall be taken by the parties as are required for the settlement of bills of exception by section 650. This latter section requires the moving party to present the proposed bill and the amendments to the judge who heard the case, and it becomes the duty of the judge to fix the time to settle the bill and notify the parties, and he must then settle the bill. If he should neglect or refuse to do so, the party desiring the bill settled may then come to this court and have the bill settled. (Code Civ. Proc., sec. 652.) Section 660 requires an application for a new trial to be heard, after the statement is filed, “at the earliest practicable period after notice of the motion; .... and may be brought to a hearing upon motion of either party” after the statement is filed. In the present case the proposed statement was served, and so also were proposed amendments, but there the proceedings ended. Whether the proposed amendments were adopted or not it was the duty of the moving party to present the statement and amendments to the judge. Defendants did all they were required to do when they presented their proposed amendments. They had no opportunity to call up the motion for a hearing, as the statement was not filed with the judge. When the first motion to dismiss the proceedings was heard and denied, it was upon evidence of which we are not advised, and it must be presumed it was sufficient. Plaintiffs may have made a counter-showing, satisfactorily explaining the long delay in the matter of the motion for a new trial. At the hearing of the last motion to dismiss two years of still further delay appeared, and nothing was shown to have been done by plaintiffs in the meantime or at any time to bring forward their motion for a new trial.

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Synopsis

CHIPMAN, C.

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