State Ex Rel. State Highway Commission v. Graeler

SIMEONE, Judge.

This is an appeal by the State Highway Commission (hereinafter Commission) from an order of the Circuit Court of St. Louis County made on June 19, 1972, which sustained a motion to dismiss for failure to prosecute exceptions made to a condemnation award. We reverse.

The Commission instituted this condemnation action by filing a petition on April 3, 1964 to condemn a parcel of land belonging to defendant-respondent, Magdalen T. Harrington, in St. Louis County. On May 15, 1964 the court granted the Order of Condemnation prayed for in the petition and appointed three commissioners to assess damages. The commissioners filed their report, and on August 19, 1964 the Commission filed its exceptions to the award made to the respondent Harrington and requested a jury trial.

Many years passed with no action taken until 1970. On July 24, 1970, pursuant to a letter request from the Commission to the docket clerk, the case was set for trial on April 23, 1971, at which time it was continued by consent of both the Commission and the respondent and was reset for October 12, 1971. On October 15 the cause was called but continued “by Consent” and reset for January of 1972. On January 21, 1972 the cause was continued “By leave” for respondent and reset for April 17, 1972. On that date the Commission answered ready for trial and the following day the cause was assigned to Division No. 14. Respondent answered ready on April 18 and witnesses for appellant were present. On April 18 the respondent again moved for a continuance and the motion for continuance was sustained. Three days later the cause was reset for October 2, 1972. On April 22 the respondent moved for production of a certain document, and on April 25 filed a motion to dismiss for failure to prosecute pursuant to Rule 67.02, V.A.M.R. The motion was heard and the court granted it on June 19, 1972, because it found that “. . . the plaintiff failed to exercise due diligence in prosecuting said exceptions in that it did not request a trial setting of its exceptions filed on August 14, 1964 until the year of 1970. The Court further finds that this is an unreasonable delay without any valid excuse.”

The Commission contends that the defendant-respondent may not now claim the right to move to dismiss for want of prosecution because the defendant’s conduct is inconsistent with the right to move for dismissal, since the cause was continued both by consent and at the request of the defendant, and it took steps to try the case on the merits. It further contends that because at some earlier time it failed to act with diligence, and defendant acted in a manner so that the Commission prepared for and incurred expenses of preparation for trial, the defendant is not at this time entitled to a dismissal for failure to prosecute.

On the other hand the defendant contends that the trial court acted within its discretion in dismissing the cause for failure to prosecute, and that injury to the defendant due to the unreasonable delay is sufficient reason for the trial court to order the dismissal of the exceptions.

Rule 67.02 and Sec. 510.140, RSMo 1969, V.A.M.S., state: “For failure of the plaintiff to prosecute or to comply with these rules (this code) or any order of court, a defendant may move for dismissal of an action or of any claim against him . . .”

We recognize the general principles. “The general rule is that courts have the inherent power, in the exercise of a sound judicial discretion, to dismiss a case for failure to prosecute with due diligence, and that the action thereon will not be disturbed on appeal unless such discretion was abused.” City of Jefferson v. Capital City Oil Co., 286 S.W.2d 65, 68 (Mo.App.1956); Euge v. Lemay Bank & Trust Co., 386 S. W.2d 398 (Mo.1965); Esslinger v. Roach, 463 S.W.2d 861 (Mo.1971). The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in these days of crowded calendars. The power to dismiss is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law. Link v. Wabash R. Co., 370 U.S. 626, 629-630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).

Here we deal with the limited issue of dismissing a cause upon motion of the defendant. Despite a long delay and despite what occurred in the past, we must determine the status of a dismissal upon motion of the defendant for failure to prosecute as of the time the motion to dismiss was made and not on occurrences which happened prior thereto.

We are not cited to, nor has our research disclosed, any prior Missouri decisions which would conclusively settle the issue. But authorities in other jurisdictions with similar procedures have held that under similar circumstances, and in the posture of the case at the time of the dismissal, the cause should not have been dismissed.

While the defendant had the right to move for a dismissal during the long years of inaction, the general principle is that the right to move for a dismissal for failure to prosecute is one which the defendant may waive by conduct which is inconsistent with his intention to exercise the right.

The law is that if at one time plaintiff failed to prosecute its cause with diligence and subsequent thereto the defendant takes steps indicating a willingness to try the cause, and at that time plaintiff is prosecuting the claim, the defendant may waive his right to move for dismissal. See Cervi v. Town of Greenwood Village, 147 Colo. 190, 362 P.2d 1050, 1053 (banc 1961); 27 C.J.S. Dismissal & Nonsuit § 49 (1959). “ . . . the right to a [dismissal] may be waived if there is conduct indicating a willingness on defendant’s part to try the case on the merits notwithstanding the delay, or if he is a party to, or causes the delay.” Pennsylvania R. Co. v. City of Pittsburgh, 335 Pa. 449, 6 A.2d 907, 912 (1939). Such a waiver is even more pronounced when the defendant fails to act until the plaintiff prepares and incurs expenses of preparation for trial before making a motion to dismiss. Conduct on the part of the defendant which indicates a willingness to try the cause on the merits, even though there is delay, is a further indication of waiver. Pennsylvania R. Co., supra.

In this case defendant twice consented to continuances long after the exceptions were made and twice requested continuances on her own motion. In such instance we believe that although defendant may have been entitled to a dismissal at an earlier time, by consenting to and requesting the continuances so that plaintiff then prepared for trial and by making the motion to dismiss at a time when the parties announced ready, she waived her right to a dismissal. Pennsylvania R. Co., supra; Cervi, supra; Kafka v. O’Malley, 221 Minn. 490, 22 N.W.2d 845, 848 (1946). Defendant’s conduct indicates that her right to dismiss for failure to prosecute was waived.

Defendant relies on City of Jefferson, supra. In that condemnation case, as here, exceptions were filed to the commissioners’ report and a jury trial was requested on the issue of damages. Five years and four months later a motion to dismiss for want of prosecution was filed, and the trial court entered an order dismissing the exceptions of the City. The City contended that the court abused its discretion in dismissing the cause because the moving party did not show injury by the delay and the dismissal could not be made since the moving party was an actor by filing exceptions. The Kansas City District affirmed the order of dismissal, but was careful to point out that “The record does not disclose any entry or order of continuance made in the trial court during the entire time the exceptions were pending.” City of Jefferson, supra at 68 of 286 S.W.2d. That case is not controlling.

We agree that the court has wide discretion in exercising its right to dismiss for failure to prosecute upon a motion made by defendant, and that all factors must be considered in determining whether to dismiss. Hennis v. Tucker, 447 S.W.2d 580 (Mo.App.1969). However, we believe that once defendant continued the cause by consent, and affirmative action and steps were taken to try the cause, and the motion was made after the parties announced ready, the defendant then waived the right to seek a dismissal and the court erred in dismissing the cause on the ground of unreasonable delay.

Defendant contends that although the defendant need not show any injury other than plaintiff’s delay, City of Jefferson, supra, Meyer v. Vinson, 448 S.W.2d 316 (Mo.App.1969), she can show injury because the original appraiser had become incapacitated due to a heart condition, and the physical contour of the land had vastly changed so that it was virtually impossible to reconstruct the scene at the time of the condemnation. While it is true that defendant need not show injury other than delay, that issue is not dispositive of the issue presented, i. e., whether the dismissal should have been granted at the time it was. If there is undue delay and no damage is shown at the time the motion for failure to prosecute is filed, then the motion may well be granted. City of Jefferson, supra. But the showing of damage in and of itself cannot warrant a dismissal unless, in addition thereto, there is a failure to prosecute at the time the motion is filed. We believe that at the time the motion was filed there was not a failure to prosecute. Cf. Pennsylvania R. Co., supra, 6 A.2d at 912 [9].

In view of the facts and circumstances here we believe the motion to dismiss for failure to prosecute should not have been granted.

The order of the Circuit Court dismissing the cause is reversed and remanded.

SMITH, P. J., and McMILLIAN, J., concur. Kelly, J., dissents in separate dissenting opinion.