Root v. Sweeney

Citations

• 17 S.D. 179
• 95 N.W. 916
• 1903 S.D. LEXIS 24

Syllabus

<p>1. Under Comp. Laws, § 5339, providing that a case remanded by the Supreme Court for new trial or further proceedings in the trial court shall be dismissed if no proceedings are had therein within a year, etc., the mere filing of the remittitur and record by the clerir does not constitute “further proceedings” so as to prevent a dismissal of the cause after the lapse of a year.</p> <p>2. ' The mere fact that a defendant, in an action for a personal judgment, failed to file an answer after the case was remanded by the Supreme Court for the trial court’s error in sustaining a demurrer to the complaint, does not excuse plaintiff’s failure to prosecute the action' within the time limited by statute.</p> <p>3.- An order was entered in an action permitting the substitution of parties plaintiff and the serving of an amended complaint. Defendant demur1 ’ red to the complaint, hut on appeal the lower court’s action in sustaining the demurrer was reversed and the case was remanded. Held, that the filing of a motion by defendant to vacate the court’s order allowing the substitution of plaintiff’s just before the appeal was perfected did not excuse plaintiffs from prosecuting' the action, .after it was remanded, within the time limited by statute.</p> <p>4. Plaintiffs brought an action at law in the state courts to recover on a guaranty in a contract of agency, and afterwards instituted an equitable action in the federal court against defendant to charge him as a trustee and subject certain judgments to the payment of the debt involved in the law action. Held, that the pendency of the equitable suit did not excuse plaintiffs from prosecuting the law action, after being remanded on appeal, within the time limited by statute.</p> <p>6. The mere fact that a defendant, against whom a personal judgment is sought, is insolvent does not excuse a failure to prosecute the action, after being remanded on appeal, within the time limited by statute.</p>