Barber v. Scott , 99 Iowa 667 ( 1896 )

Granger, J.

This cause óf action accrued somewhere about 1886. It was commenced in September, 1891, and issue taken in October following. A trial notice was served on plaintiff, and the cause then continued by agreement from term to term until December, 1893, when it was dropped from the judge’s calendar. In April, 1895, the plaintiff filed a motion to have the cause reinstated on the calendar for trial, and served a trial notice on the defendant. Objections were filed to the motion, and much testimony taken to show the purpose in maintaining this suit, and why it was not prosecuted. There was another cause between the parties, growing out of the same transaction, which was prosecuted to judgment against the defendant, appealed to this court, and affirmed in October, 1894. 92 Iowa, 52 (60 N. W. Rep. 497). There is reason to think that the trial of this cause was postponed because of the pendency of that action. Just the legal effect of dropping a case from the judge’s calendar is not understood. It does not necessarily mean a dismissal of the cause, and it may be doubted if such a conclusion should follow except where there are other facts to indicate such a purpose. Upon the application to reinstate this cause, an issue of fact is made and tried as to the purpose in dropping the case. The case was regularly called for trial in December, 1893, more than two years after its commencement, and without other facts appearing, it was dropped from the calendar. The inference is that it was dropped for want of prosecution. The record indicates a mutual understanding of the parties not to prosecute, but not that such fact was known to the court. The record on the issue as to the intention of the parties, as presented, is such that the court could find that the cause was continued because of the pendency of the other suit, and to know the result, and that if plaintiff was successful in that case this would not be prosecuted. If defendant consented to such a continuance with that understanding, and the cause was dropped because of the failure to prosecute, we think the court might well treat the case as dismissed, especially after the disposition of the other case. It is a matter in which the conclusion of the court below on a finding of fact concludes us, because, of the conflict of the evidence. This is true when all testimony vulnerable to objections is disregarded. The doubtful questions in the ease are those of fact, which the court below must have fonnd against the plaintiff. The judgment is affirmed.