No. 13900 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

TIMOTHY T. CALAWAY, 

Plaintiff, 

-vsSID JONES, 

Defendant. ........................................ 

SID JONES, 

Third Party Plaintiff and Appellant, 

-vsPARKER IRRIGATION & SUPPLY et al., 

Third Party Defendants and Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable doel G, R&h, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana 

George N. McCabe argued, Great Falls, Montana 

For Respondents: 

Marra, Wenz, Iwen and Johnson, Great Falls, Montana 

Alexander, Kuenning & Miller, Great Falls, Montana 

Edward C. Alexander argued, Great Falls, Montana 

Dzivi, Conklin, Johnson & Nybo, Great Falls, Montana 

William Conklin argued, Great Falls, Montana 

Cure and Borer, Great Falls, Montana 

Edward W. Borer argued, Great Falls, Montana 

Smith, Emmons, Baillie and Walsh, Great Falls, Montana 

Dennis P. Clarke argued, Great Falls, Montana 

Submitted: May 1, 1978 

Decided: JUN 2 ? 197.Q 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

This is an appeal from an order of dismissal entered in 

the District Court, Cascade County. 

This action was commenced by a complaint filed on December 

5, 1972, by plaintiff Timothy T. Calaway, against defendant Sid 

Jones. The complaint alleged Calaway leased land from Jones 

in 1971, to be seeded in potatoes. Jones agreed to provide 

irrigation for the land. The parties additionally agreed on a 

division of crop shares. Calaway alleged Jones failed to provide 

the irrigation system required and, as a result, the entire crop 

was lost. 

On January 3, 1973, Jones filed an answer, counterclaim and 

third party complaint, denying responsibility for the crop loss, 

alleging sums due and owing him from Calaway and asserting claims 

seeking both affirmative relief and idemnification against Parker 

Irrigation & Supply, a division of Bitterroot Cannery & Wholesale 

Supply Company, a Montana corporation; Simpson Timber Company, 

a corporation; Gheen Irrigation Works, a corporation; and B. F. 

Goodrich Company, a corporation, third party defendants and 

respondents. In sum, the third party complaint alleged the 

irrigation system installed and furnished by respondent Parker 

Irrigation & Supply, and materials manufactured by the other 

respondents, were defective and, therefore, responsible for the 

crop failure. 

Respondents filed answers, the last was filed by Parker 

Irrigation on November 27, 1973. By reason of crossclaims between 

the respondents for indemnity, the pleadings between respondents 

were not completed until April 1975. 
Interrogatories were sent by Jones to all respondents 

following the initiation of the third party action. The interrogatories were completed upon the June 26, 1974, receipt of the 

answers of Parker Irrigation. 

B. F. Goodrich Company submitted interrogatories to Jones 

on September 10, 1973. Upon his failure to answer, Goodrich, on 

June 27, 1974, moved to compel answers to its interrogatories. 

Jones answered the interrogatories on July 2, 1974. 

Jones was to be deposed by Goodrich on March 3, 1975. 

However, Jones failed to appear, and was not deposed until March 

24, 1975, upon the order to appear entered by the District Court. 

Jones has taken no further action in prosecution of his third 

party claims. 

Finally, on May 12, 1977, Simpson Timber Company moved to 

dismiss the third party complaint for want of prosecution. The 

other respondents joined in the motion. A hearing on the motions 

was held on June 1, 1977. On June 7, 1977, the District Court 

granted the motions to dismiss, finding: 

It* * * that the third party plaintiff has not been 

diligent in the prosecution of the third party complaint, or in procuring determination of the principal 

action and that there is no adequate excuse for the 

delay * * *.It 

Jones appeals the June 7, 1977, order of the District Court 

dismissing his third party complaint. 

The sole issue presented for review is whether the District 

Court abused its discretion in dismissing the third party complaint for want of prosecution. 

The rule of civil procedure which governs the dismissal 

of an action for failure to prosecute is Rule 41(b), M.R.Civ.P. 

It provides in part: 
"INVOLUNTARY DISMISSAL -- EFFECT THEREOF. For failure 

of the plaintiff to prosecute or to comply with these 

rules or any order of court, a defendant may move for 

dismissal of an action or of any claim against him. * * *It 

It is generally held, in the absence of a statute prescribing time limitations for bringing an action to trial, that the 

matter of dismissal for want of prosecution is a matter addressed 

to the sound discretion of the trial court. This Court stated 

in Cremer v. Braaten, (1968), 151 Mont. 18, 19, 20, 438 P.2d 553: 

"It is within the discretion of the trial court 

to dismiss an action if it has not been prosecuted with 

reasonable diligence. It is presumed the trial court 

acted correctly and its decision will not be overturned 

without a showing of an abuse of discretion. M.R.Civ.P., 

Rule 41(b); State Savings Bank v. Albertson, 39 Mont. 

414, 415, 102 P. 692; Silver v. Eakins, 55 Mont. 210, 175 

P. 876." 

In the instant case, Jones argues the District Court abused 

its discretion in dismissing the cross-complaint as respondents 

have shown no actual prejudice occasioned by the delay, as all 

witnesses are presently available for trial. Likewise, Jones contends the delay attributable to him was not exceedingly lengthy, 

thus failing to give rise to a presumption of prejudice. We 

cannot agree with this contention in view of the conduct of Jones 

during the discovery phase of the the proceedings. 

It is well established in Montana law that an action may 

be dismissed for failure of the plaintiff to prosecute it with 

due diligence, absent a sufficient showing of excuse. State ex rel. 

Johnstone v. District Court, (1957), 132 Mont. 377, 319 P.2d 957; 

Cremer v. Braaten, supra. The unanimous weight of authority 

demonstrates that the rule is equally applicable to a defendant's 

failure to diligently prosecute a cross-claim or counterclaim. 

Seaman v. Superior Court of Marin County, (1920), 183 Ca1.47, 190 

P. 441; Harris v. Harris, (1948), 65 Nev. 342, 196 P.2d 402; Pettine 

v. Rogers, (1958), 63 N.M. 457, 321 P.2d 638; Hanson v. Lee, (1970), 
3 Wash.App. 461, 476 P.2d 550; 27 CJS.Dismissa1 & Nonsuit 565. 

It was initially held in Montana that mere lapse of time 

is insufficient in itself to justify a dismissal. State Savings 

Bank v. Albertson, (1909), 39 Mont. 414, 102 P. 692. However, 

in commenting upon the rule in Cremer v. Braaten, supra, this 

Court stated: 

"Plaintiff argues that the action could not be 

dismissed as defendant has shown no injury by the delay. 

When a plaintiff has slept on his cause for over 

twelve years the law presumes injury and places the 

burden on the plaintiff to show good cause for the delay. 

State ex rel. Johnstone v. District Court, 132 Mont. 

377, 319 P.2d 957." 151 Mont. 20. 

An unreasonable delay therefore operates to place upon the party 

seeking relief the burden of demonstrating a reasonable excuse 

for his inaction. 

Here, however, we find the delay occasioned by Jones' inaction to be unreasonable. Jones failed to take any significant 

action towards a final determination of the case for at least three 

years prior to the dismissal, and has offered no excuse for the 

delay. Jones' failure to timely respond to certain interrogatories, and failure to appear at a scheduled deposition characterize 

his inaction regarding furtherance of an ultimate resolution of 

his claim. 

As no abuse of discretion in dismissing the cross-claim 

has been demonstrated, the order dismissing such claim in favor 

of respondents and each of them is af 

%+!, 
We Concur: 

zd $.%YCPQ 

Chief Justice 

Justices .