Opinion
No. 30531.
April 4, 1933.
1. STIPULATIONS.
Agreement between defendant's solicitor and complainant's solicitor that cause should be continued for hearing in vacation was not binding on defendant, where not evidenced by signed written stipulation filed with papers in cause (Code 1930, section 390).
2. DISMISSAL AND NONSUIT.
Statute providing for dismissal of pending cause, in which no step has been taken for two terms, held mandatory (Code 1930, section 667).
3. DISMISSAL AND NONSUIT. Where cause was dismissed as state on clerk's motion, court properly refused, under facts shown, to set aside order of dismissal ( Code 1930, section 390).
Facts disclosed that cause was commenced on August 14, 1925, and that no step was taken until April 6, 1928, when order was entered submitting cause to be heard in vacation on bill and demurrer; that before convening of term at which cause was dismissed one of solicitors for defendant agreed with one of complainant's solicitors that hearing of cause should stand on order entered on April 6, 1928, but evidence showed that neither defendant nor any of its solicitors had any hand in the dismissal of cause as stale, and that no written stipulation was filed in cause providing for its trial in vacation as provided by Code 1930, section 390.
APPEAL from chancery court of Forrest county. HON. T. PRICE DALE, Chancellor.
T. Brady, Jr., of Brookhaven, and Hannah Simrall, of Hattiesburg, for appellant.
There is not, and has not been a chancellor in the state of Mississippi who has required the lawyers to reduce their agreements for the continuance of their cases to writing, and file the same with the papers.
The same rule of decision applies in the construction and interpretation of this rule that obtains in the interpretations of contracts and other written documents; and that this rule, because of the common accepted dealing with it, has no bearing whatever on the case at bar.
A compliance with section 667, Code of 1930, requires that the clerk file a motion in writing; and second, that no action can be taken on this motion until the plaintiff has had proper notice of the motion and an opportunity to be heard.
But all other motions, especially if they be of any substantial importance, must be in writing; and if based on extrinsic facts, that is to say, on facts which lie outside of the existing record, the motion must be supported by an affidavit setting forth the facts.
Griffith's Mississippi Chancery Practice, section 402.
It has been the common custom and the common practice of attorneys to orally and verbally agree for the continuance of their cases, and to report such agreement to the chancellor, and no further action was necessary.
Decisions and orders on motions are interlocutory, are therefore not conclusive on the court in the further progress of the case, and may be set aside, or revised or reshaped according to exigencies of the case until final decree has been made, from which it follows that a renewal or a reargument of a motion of a postponement of a hearing thereon, and the like, are within the control and discretion of the court until the final determination of the case. And finally, in pretermitting any further discussion of details, it may be said that in our practice so far as concerns motions, the dictates of natural justice and sound common sense are as nearly unfettered as can possibly be, and remain consistent with the observance of essential forms and general rules.
Griffith's Mississippi Chancery Practice, section 407.
If for reasons and grounds sufficient unto themselves, counsel elect not to bring the case up for final disposition, but to continue it indefinitely, we submit that the court has no right to arbitrarily dismiss it without giving counsel notice of the purpose of the court to do so and affording the opportunity to be heard.
The appellees are not in position to claim any advantage of this order of dismissal, wrongfully made, when the case at bar was delayed from the fall of 1925 until the spring of 1929 at the instance and by the action of the appellees.
Person Marye v. Nevitt, 32 Miss. 180.
Travis Travis and Stevens Heidelberg, all of Hattiesburg, for appellee.
The essential nature of the power to dismiss a suit, for a want of prosecution with proper diligence, is an inherent power or right in the court itself, and the court may proceed on its own motion, independently of any statute and of any motion of the parties to the suit.
Griffith, Mississippi Chancery Practice, sec. 538.
Sec. 667, Code of 1930.
From the very language of the statute itself the use of the mandate "shall" both as to the clerk and the court in the circumstances mentioned, eliminates any discretion thought to exist before this positive statutory requirement.
This wholesome regulation has been greatly neglected in our state in past years with the result that the dockets in the aggregate contain thousands of stale cases to the serious loss to the officers of their costs, and generally to the discredit of all concerned.
Griffith's Mississippi Chancery Practice, sec. 538, p. 585, note 25.
The complainant brought the defendants into court, asserting a right against them. It was incumbent on him to speed the cause. When their defense was presented, it was his place to test its sufficiency in law or by an issue put them upon the proof of it.
Smith v. Crozat, 45 Miss. 698, 702-703.
The alleged verbal agreement for a continuance is not a step within the meaning of such provision.
Sec. 390, Code of 1930.
A written motion could not be contemplated in cases of dismissals by the court proprio jure on motion of the clerk under section 667, Code of 1930.
Griffith's Mississippi Chancery Practice, secs. 400, 401.
The instant cause is within the general rule to the effect that an order of dismissal cannot be vacated or set aside after the end of the term at which entered.
Griffith's Chancery Practice, sec. 622; American Burial Case Co. v. Shaughnessy, 59 Miss. 398; McIntosh v. Munson, 145 So. 171; Sagory v. Bayless, 21 Miss. 153; Hardy v. Gholson, 26 Miss. 70; Shirley v. Conway, 44 Miss. 434; Wiggle v. Owen, 45 Miss. 691; Allen v. Dicken, 63 Miss. 91; Kelley v. Harrison, 69 Miss. 857; Ex parte Stanfield, 98 Miss. 214; Beard v. McClain, 78 So. 184; Carter v. Kimbrough, 122 Miss. 542; Bates v. Strickland, 139 Miss. 636.
Argued orally by T. Brady, for appellant, and R.W. Heidelberg, for appellee.
This is an appeal from a decree of the chancery court of Forrest county refusing to set aside an order of that court made at a previous term dismissing this cause as stale, and refusing to reinstate it on the docket for trial.
The cause was begun on August 14, 1925, when appellant filed its bill against appellee seeking certain relief. Appellee interposed a demurrer to the bill. By agreement of the solicitors of the parties no step was taken in the case until April 6, 1928, when an order was entered submitting the cause to be heard in vacation on bill and demurrer. No further steps of record were taken by either party. Some days prior to the March, 1931, term of the court the clerk entered on the docket a motion to dismiss a large number of cases, including this one, as stale. The motion recited, "set down for hearing on motion of the clerk to dismiss as stale." The term of court covered the period from March 16 to April 11, 1931. The decree of dismissal was entered on April 10th, the day before the adjournment of court.
The evidence tended to show that before the convening of the term of court at which the cause was dismissed one of the solicitors for appellee agreed with one of appellant's solicitors that the hearing of the cause should stand on the order entered on April 6, 1928; that is, that it should be tried in vacation at such time and place as might be agreed upon by the chancellor and the solicitors representing the respective parties. The evidence showed further, however, without conflict that neither appellee nor any of its solicitors had any hand in the dismissal of the cause as stale. On the contrary, that they neither knew nor heard of its dismissal until after the court, at which the order of dismissal was entered, had adjourned. No written stipulation was filed in the cause providing for its trial in vacation.
Section 390, Code 1930, is in this language: "Whenever the court, or chancellor in vacation, is empowered to allow an enlargement of time for filing answer or demurrer, or to set aside a decree pro confesso or to remand the cause to rules for further pleadings or proof, or to grant a continuance for the term, any of the same may be had and done without any order of the court or chancellor if all the parties or their solicitors of record sign and file in the cause a written stipulation to that effect; and a solicitor, when once authorized to appear in a cause for a party shall thereafter be conclusively deemed as authorized to continue and as continuing therein as such solicitor for said party until a written notice by the solicitor or by the party, of the termination of the authority shall be filed among the papers in the cause."
Under this statute the agreement relied on by appellant that the cause be continued for hearing in vacation was not binding on appellee because it was not evidenced by a signed written stipulation filed with the papers in the cause. This is not a case where one of the parties to a cause has suffered by the wrong of his adversary. If the solicitors for appellee had been active in bringing about the dismissal of the cause, or had known of the motion of the clerk to dismiss, without informing the solicitors for appellant of such action or knowledge, there would be a very different question from the one now before the court.
Section 667, Code 1930, provides as follows: "The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the cost of the plaintiff or complainant."
For the first time, by the adoption of the Code of 1930, this statute was made mandatory. It provides that the clerk shall make the motion and the court shall dismiss, unless good cause be shown to the contrary.
We see no escape from affirming the decree.
Affirmed.