Lee Doon v. Tesh

Motion by defendants to dismiss for neglect to prosecute with diligence.

In 1882 plaintiffs brought the action to determine their right to the possession of certain mining ground as against defendants’ right to possession. The action was brought under section 2326 of the Revised Statutes of the United States. Defendants had judgment on demurrer in January, 1882. An appeal was taken to this court and the judgment was reversed as to one of the plaintiffs, with instructions to overrule the demurrer to his complaint with leave to defendants to answer thereto, and as to the other plaintiffs the judgment on the demurrer was affirmed. Subsequently, in 1886, the cause was tried by the court without a jury, findings made in favor of defendants, and it was adjudged that the plaintiff, as to whom the action remained, take nothing, and judgment was entered for defendants November 29, 1886. Plaintiffs served a statement on motion for a new trial August 13, 1887, proposed amendments to which Were served by defendants September 2, 1887. No further steps were taken on the motion for new trial. The judge who rendered judgment and made the findings went out of office, and on July 3, 1897, a motion was made before his successor by defendants’ counsel “to dismiss proceedings now pending in said action.” The notice of the motion stated that “said motion will be made upon the records, files, and papers in said cause and upon the ground of plaintiffs’ neglect to prosecute said action with diligence.” The motion was to dismiss all proceedings now pending in the action, and the court denied the motion April 13, 1898, and no appeal was taken from the order. Defendants, on April 20, 1900, gave notice of a motion “to dismiss said cause and all proceedings now pending therein,” stating that “said motion will be made upon the records, files, and papers in said cause, and upon the ground that plaintiffs have neglected and refused to prosecute said action in refusing and neglecting to settle the statement on motion for a new trial, or to take any step for its settlement for the period of ten years.” A motion was made in accordance with the notice, and on May 8, 1900, was denied and the appeal is from this order.

Respondents concede that the order now here was appealable (McDonald v. McConkey, 57 Cal. 325 ); but they contend that defendants having failed to appeal from the order denying the first motion to dismiss, made April 13, 1898, that order became res judicata and terminated defendants’ right to move for a dismissal. We do not think defendants were precluded from again making a motion to dismiss under the facts shown in this case.

Here plaintiffs gave notice of intention to move for a new trial and served a proposed statement, and defendants served their proposed amendments and there the plaintiffs halted. Defendants had applied at the United States land office for a patent, and plaintiffs interposed adverse claims and filed a protest in the land office, claiming a portion of the'land claimed by defendants. Under section 2326 of the United States Revised Statutes this protest stayed proceedings “until the controversy shall have been settled or decided by a court of competent jurisdiction or the adverse claim waived.” The statute makes it the duty of the adverse claimant, “within thirty days after filing his claim to commence proceedings in a court of competent jurisdiction to determine the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim.” The statute also provides that after final judgment the party entitled to possession of the claim may file a certified copy of the judgment-roll with the register of the land office, and upon complying with certain other provisions patent may then issue. It is probably true that the filing of the judgment-roll would not entitle the claimant to a patent under the United States statute in the face of evidence that an appeal had been taken or was being taken, or that proceedings for a new trial were pending, and hence defendants could not avail themselves of their judgment until the motion to dismiss was disposed of.

Where a motion for new trial is to be made on a statement of the case, the moving party must serve the proposed statement on the adverse party within a certain time and if the state

There was no counter-showing by plaintiffs in any way explaining or excusing their neglect for ten or twelve years to proceed with their motion for a new trial; their reliance seems

We think, however, that the court should have granted the motion to dismiss the proceedings taken under the motion for a new trial. It is advised that the order be reversed, with directions to dismiss the proceedings relating to the new trial.

Gray, 0., and Haynes;, C., concurred.

For the reasons given in the foregoing opinion the order is reversed, with directions to dismiss the proceedings relating to the new trial. .Van Dyke, j., Harrison, J., Garoutte, J.