p. 359E. L. H. Moeller agt. Robert Bailey.Headnote
A defendant cannot now move for judgment as in case of nonsuit, or a dismissal of the complaint, merely because the plaintiff has failed to notice the cause for trial, and later issues have been tried at the circuit.When the plaintiff has proceeded to get the cause in readiness for trial, the proper mode of proceeding for the defendant, if he would expedite the determination, is, to set it down for trial upon his own notice; then if the plaintiff does not choose to try it, he may move for a dismissal.
Motion to dismiss complaint.
Issue was joined in the action on the 20th of February, 1855. The venue is in Schoharie. Circuits were held in that county on the third Monday of May and the third Monday of September, at the latter of which issues of a later date than that in this cause were, upon a regular call of the calendar, tried. This cause was not noticed for trial at either of said circuits. Upon an affidavit showing these facts, the defendant moved to dismiss the complaint for not bringing the action to trial. On the part of the plaintiff, an affidavit was read tending to show that the cause could not have been tried, if it had been on the calendar at the September circuit.
W. C. Lamont, for plaintiff.
R. C. Martin, for defendant.
By the 23 d rule of this court, adopted in 1849, it was provided that when an issue of fact should be joined in any action, and the plaintiff therein should fail to bring the same to trial, according to the course and practice of the court, the defendant might move for the dismissal of the complaint, with costs. This rule continued in force until the revision, which took place in 1854, when it was abolished.
p. 360It was thought that, since the Code had authorized a defendant, as well as the plaintiff, to notice the issue for trial, the practice of moving to dismiss the complaint for not bringing the cause to trial, in analogy to the motion for judgment as in case of nonsuit under the common-law practice, was both unnecessary and inconvenient.'
The practice, as it now exists, is substantially the same as it ‘was in the court of chancery. By the last clause of the 274th section of the Code, a defendant may move for a dismissal of the complaint on the ground of unreasonable neglect in the prosecution of the suit; but when the plaintiff has proceeded to get the cause in readiness for trial, the proper mode of proceeding on the part of the defendant, if he would expedite its determination, is to set it down for trial upon his own notice. Then, if the plaintiff does not choose to try it, he may move for a dismissal.
This motion must be denied, but without costs.