
    [File No. 6286.]
    C. J. McGURREN and Clinton Smith, Appellants, v. NOYES BROS. & CUTLER, a Corporation, Respondent.
    (256 N. W. 649.)
    Opinion filed September 28, 1934.
    
      Alvin C. Strutz, for appellants.
    
      Traynor and Traynor, for respondent.
   Burke, J.

This is an appeal from a decision dismissing an action.

The motion to dismiss was upon three grounds: (1) Rule 14 of the district court rules providing for dismissal whenever any case has been at issue, whether upon the calendar, or not, for three successive terms of court. (2) Lack of prosecution in violation of section 7598, Compiled Laws 1913. (3) Because of dissolution of the defendant corporation.

The action was commenced in June, 1928, and notice of trial was served in time to place said action on the calendar for trial at the November, 1928, term of said court. Nothing further was done and as stated in the memorandum opinion of the trial judge, who dismissed the action, the affidavits of defendant’s 'counsel show that the defendant was led to believe that said action had been abandoned. In November, 1932, the defendant moved to dismiss the action under rule 14 of the district court rules providing for dismissal whenever any ease has been at issue whether upon the calendar or not for three successive terms of court and for the further reason that the defendant corporation had been dissolved. The motion was overruled and the case was put on the calendar for trial as a court case. The affidavits of Alvin C. Strutz and William Langer, in behalf of appellants, state, in substance, that in tbe month of November, 1932, tbe motion to dismiss was overruled and that at such time an agreement was made between counsels for plaintiffs and defendant that said case could be brought on for trial without a jury upon ten days’ notice as shown by tbe minutes of the court and of tbe cleric of district court; that certified copies of said minutes of said cleric of court are attached to tbe affidavits and made a part thereof. Tbe affidavits claim that tbe minutes of tbe court and tbe clerk show tbe stipulation. Tbe November, 1932, term of said court was presided over by Judge Grimson and tbe records of that term do not show any stipulation.

Judge Kneeshaw presided at tbe November, 1933, term and in bis bandwriting there appears in tbe record this entry, namely: “To be tried to tbe court by stipulation on ten days’ notice.” This is tbe only reference in tbe record to any stipulation and it was not made in 1932 by Judge Grimson, who heard the first motion for dismissal, but by Judge Kneeshaw, who beard tbe motion upon which tbe action was finally dismissed.

Judge Kneeshaw states in bis memorandum opinion that he made this entry upon statements made by Mr. Gooler, attorney of record for tbe plaintiffs and without tbe knowledge or consent of tbe counsel for tbe defendant. That counsel for tbe defendant did not agree at said term to try tbe case upon ten days’ notice. Judge Kneeshaw further states that be received an affidavit from Mr. Gooler too late for consideration, but that if be bad received it in time it would not have changed bis decision. This affidavit is not in tbe record, but it is in tbe brief of counsel for tbe plaintiffs. Even if considered, we do not see bow it could affect tbe case as it simply states a conclusion of what Mr. Gooler understood in relation to bringing tbe case on for trial.

Mack Traynor, attorney for tbe defendant, filed several affidavits in which be states that at tbe bearing on the motion in 1932 be did agree that if tbe motion was overruled tbe case might be placed on tbe calendar to be called at tbe next term of court for trial as a court case and that be refused to agree to its trial at any other term and there is nothing in the record showing any agreement other than as stated in Mr. Traynor’s affidavits, but even if there was a stipulation that the case might be brought on for trial on ten days’ notice that would not excuse the plaintiffs for not bringing the case on for trial within five years after the commencement of the action without some reasonable excuse.

As stated in Judge Kneeshaw’s memorandum opinion no excuse whatever has been shown. The record shows no action upon the part of the plaintiffs after the commencement of the action and the service of notice of trial, except to resist motions to dismiss. Even after the motion to dismiss was overruled in 1932 no attempt was made to bring the case on for trial and in March, 1934, the defendant’s motion to dismiss was granted for the reason that the action had not been brought on for trial within the statutory period.

“Failure for five years to bring action to trial creates a presumption of unreasonable neglect on the part of plaintiff, entitling defendant to dismissal of action.” Lambert v. Brown, 22 N. D. 107, 132 N. W. 781; Donovan v. Jordan, 25 N. D. 617, 142 N. W. 42; Comp. Laws 1913, § 7598.

The decision dismissing the action is affirmed.

Burr, Ch. J., and Christianson and Moellring, JJ., and Berry, Dist. J., concur.

Nuessle, J. did not participate, Hon. H. L. Berry, Judge of Sixth Judicial District, sitting in his stead.  