The trial court, exercising judicial discretion, was clearly entitled to dismiss this cause for want of prosecution. The Court of Civil Appeals and the brief filed on behalf of Stoot in this Court discuss that line of cases where dismissal for want of prosecution has been upheld on the ground that the party seeking relief 'abandoned' his cause — or failed to exercise due diligence: Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489 (1942); Denton County v. Brammer, 361 S.W.2d 198 (Tex. 1962); Missouri Pacific R.R. Co. v. Liberty County Water Control and Improvement Dist. No. 6, 483 S.W.2d 50 (Tex.Civ.App. 1972, writ ref'd n.r.e.); Petroleum Refining Co. v. McGlothlin, 429 S.W.2d 676 (Tex.Civ.App. 1968, writ ref'd n.r.e.); Beckham v. Travelers Ins. Co., 487 S.W.2d 772 (Tex.Civ.App. 1972, no writ). The question in those cases was whether the passage of time in itself, in the absence of satisfactory explanation, warranted the presumption of abandonment — or the legal conclusion that diligence had not been exercised. We need not decide whether the passage of over three years in itself would be sufficient to warrant a determination that Stoot had failed to exercise diligence, because that is not our case.
This rule has been cited as a correct statement of the law by several courts of appeals. See, e.g., Stuart v. Harris County Flood Control District, 537 S.W.2d 352, 354 (Tex.Civ.App. — Houston [14th Dist.] 1976, writ ref'd n.r.e.); Missouri Pacific Railroad Co. v. Liberty County Water Control and Improvement District No. Six, 483 S.W.2d 50, 51 (Tex.Civ.App. — Beaumont 1972, writ ref'd n.r.e.); Lowe v. City of Arlington, 470 S.W.2d 206, 208 (Tex.Civ.App. — Fort Worth 1970, writ ref'd n.r.e.). Whether to dismiss a case for want of prosecution lies within the judicial discretion of the trial court, subject to review only upon a clear showing of abuse.
The sole test is whether the case was prosecuted with due diligence. See Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489 (1942); Missouri Pacific Railroad v. Liberty County Water Control Improvement District No. 6, 483 S.W.2d 50 (Tex.Civ.App. Beaumont 1972, writ ref'd n.r.e.). A party who files a petition must prosecute his claim to judgment with reasonable diligence. If he fails to do this, the court has the inherent power to dismiss his claim for want of diligence in its prosecution.
That is a question of law. Denton County v. Brammer, 361 S.W.2d 198 (Tex. 1962); Missouri Pacific Ry. Co. v. Liberty County Water Control Improvement District No. Six, 483 S.W.2d 50 (Tex.Civ.App. — Beaumont 1972, writ ref'd n.r.e.); Fulmer v. Barfield, 480 S.W.2d 413 (Tex.Civ.App. — Tyler 1972, writ dism'd). We cannot say from the limited record before us that the trial court abused its discretion in dismissing the cause as to appellees for want of prosecution.
This procedure has been adopted as the law by numerous courts of civil appeals. See Missouri Pacific R.R. Co. v. Liberty County Water Control Improvement District No. Six, 483 S.W.2d 50 (Tex.Civ.App. — Beaumont 1972, writ ref'd n.r.e.); Lowe v. City of Arlington, 470 S.W.2d 206 (Tex.Civ.App. — Fort Worth 1971, writ ref'd n.r.e.); Moss v. State, 361 S.W.2d 408 (Tex.Civ.App. — Eastland 1962, no writ). The above procedure outlined by Judge Calvert was followed in the present case.
None of the assigned errors addresses itself to the absence of a statement of facts. Justice Stephenson, in Missouri P.R. Co. v. Liberty County Water C. I. Dist., 483 S.W.2d 50 (Tex.Civ.App. — Beaumont 1972, writ ref'd n.r.e.), discussed in detail the rules governing such a dismissal. It is readily apparent from such discussion that the trial court's discretion in dismissing the cause for want of prosecution will not be reversed in the absence of a showing of abuse of discretion; and, this presupposes that evidence was introduced at the hearing upon the motion.
Where there has been an unreasonable delay in the prosecution of a suit, and such delay has not been sufficiently explained, there is a conclusive presumption of abandonment of appellant's suit and dismissal is justified. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489 (1942); Missouri P.R. Co. v. Liberty County Water C. I. Dist., 483 S.W.2d 50 (Tex.Civ.App. — Beaumont 1972, writ ref'd n.r.e.). A suit may be dismissed for want of prosecution even though the appellant objects to the dismissal at the hearing thereon and manifests his intention to prosecute the suit to judgment.
In that the cause was never tried during its six year and three month pendency, appellant's attorney's willingness to proceed to trial on depositions does little to mitigate the inordinate delay which has accrued due to appellant's own dilatoriness. It is here noted that the primary activities in the early stages of the case were those of the appellee. As stated in Petroleum Refining Company v. McGlothlin, 429 S.W.2d 676, 678 (Tex.Civ.App. — Eastland 1968, writ ref'd n.r.e.), '(i)t is now established law that a court has the right to dismiss a suit for failure to prosecute it with due diligence, despite the fact that the party whose suit is dismissed had no intention to abandon the case and hoped to settle it. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 88.' Also see Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628 (1958); Missouri Pacific Railroad Company v. Liberty County Water Control and Improvement District, 483 S.W.2d 50(Tex.Civ.App. — Beaumont 1972, writ ref'd n.r.e.); and Stateler v. Nettles, 163 S.W.2d 700 (Tex.Civ.App. — Dallas 1942, no writ). We are of the opinion that the principle of law announced applies to the factual situation presently before us. As the appellant had not prosecuted his cause of action with due diligence, appellant's attorney cannot claim that he will try the action on depositions and charge the trial court with an abuse of discretion for disallowing the request, particularly under the facts of this case.
Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628, 630 (1958); Rorie v. Avenue Shipping Co., 414 S.W.2d 948 (Tex.Civ.App., Houston, 1967, error ref. n.r.e.); and Petroleum Refining Company v. McGlothlin, 429 S.W.2d 676, 678 (Tex.Civ.App., Eastland, 1968, error ref. n.r.e.) This court in Missouri P.R. Co. v. Liberty County Water C. I. Dist., 483 S.W.2d 50, 52 (Tex.Civ.App., Beaumont, 1972, error ref. n.r.e.), in an able opinion by Justice Stephenson, recently held 'that an intent to abandon is not a part of the test for a trial court to apply in passing upon a motion to dismiss for lack of prosecution and that the sole test is whether the case was prosecuted with due diligence.' (For example, see Loftus v. Beckmann, 1 S.W.2d 268 (Tex.Comm.App. 1928) and Craig v. State, 433 S.W.2d 713 (Tex.Civ.App., Tyler, 1968, error ref. n.r.e.)) Here the trial court's order recites that he heard evidence and that the 'Motion is well-taken and should be granted because of the failure of the Plaintiff to show diligence in the prosecution of this said cause.