Lowe v. Ring

KeewiN, J.

Tbe court below dismissed tbis action for want of prosecution, and tbis appeal is from tbe judgment of dismissal. The action was commenced in 1891, three times tried in circuit court, and three times beard in this court. 106 Wis. 647, 82 N. W. 571; 115 Wis. 575, 92 N. W. 238; and 123 Wis. 370, 101 N. W. 698. Tbe record was remitted from tbis court to tbe lower court in April, 1905, since which time little has been done by way of pressing tbe case for disposal.

It appears that in September, 1905, a reference was ordered, but no referee named, and none has been agreed upon, although it appears that some negotiations were bad looking to an agreement upon a referee. Since tbe case was remitted in 1905 up to tbe time motion was made to dismiss, little effort has been made by appellant to bring tbe case to trial, and but a very small portion of tbe delay, if any, was occasioned by respondent. True, it is argued that the parties bad failed.' to agree upon a referee. But it does not appear that the appellant was at all diligent in endeavoring to obtain an agreement. And during the greater part of the time from September, 1905, up to the time motion was made to dismiss, a period of upwards of five years, no diligence whatever had been used to speed the case.

True, appellant’s counsel seeks to excuse the delay to some extent, but at best the excusable period of delay is very short and would not exceed a few months, while the ease has been permitted to slumber since the order of reference, about five years, during which time some witnesses have died. It is said that the evidence of the deceased witnesses has been taken on former trials. The use of such evidence on another trial might not be as efficient to the ends of justice as the evidence of the witnesses taken in open court before a jury. It is also claimed by appellant that respondent failed to use diligence in speeding the case. This can hardly be said to furnish an excuse for appellant’s delay for so long a period of time. In fact practically nothing was done by appellant in the way of speeding the case from September, 1905, to January, 1910.

Appellant insists that it was as much the duty of respondent as appellant to bring the case to trial, and moreover that respondent has waived the right to insist on a dismissal. It is the legislative policy of this state that a plaintiff is under obligation to bring his action to trial and not permit it to unduly slumber, and we fail to find any warrant in the record for holding that the respondent waived the right to insist on dismissal for want of prosecution. We shall not attempt to review the conflicting claims of the parties respecting delays and attempted excuses for delays. Yery little excuse has been shown for the long delay from 1905 to 1911, the time motion to dismiss was made. Upon the facts presented the case seems to be one involving in a large measure the exercise of a sound discretion on the part of the court below, and this court has held in a late case somewhat similar in facts tbat sucb discretion will not be disturbed except in case of clear abuse. Smith v. Carter, 141 Wis. 181, 122 N. W. 1035.

After a careful reading of tbe record we are unable to say tbat tbe court below abused its discretion in dismissing tbe action.

By the Gourt. — Tbe judgment is affirmed.

Vinje, J., took no part.