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, Honorabledoel 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.QMr. 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 actionwas 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, tobe seeded inpotatoes. Jones agreed toprovide irrigation for the land. The parties additionally agreed on a division of crop shares. Calaway allegedJones failed toprovide the irrigation system required and, as a result, the entire crop
was lost. On January 3, 1973, Jones filedan 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 IrrigationWorks, 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 filedanswers, the lastwas filedby Parker Irrigation on November 27, 1973. By reason of crossclaims between the respondents for indemnity, the pleadings between respondents

were not completed untilApril 1975.Interrogatories were sentby Jones to allrespondents following the initiationof 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 toJones

on September 10, 1973. Upon his failure toanswer, Goodrich, on June 27, 1974, moved to compel answers to its interrogatories. Jones answered the interrogatories on July 2, 1974. Jones was tobe deposed by Goodrich on March 

### 3, 1975. However, Jones failed to appear, and was not deposed untilMarch 24, 1975, upon the order toappear entered by the District Court. Jones has taken no further action inprosecution 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 inthe motion. A hearing on the motions

was held on June 1, 1977. 

### On June 

### 7, 1977, the District Court granted the motions todismiss, finding:

It*

# * * that the thirdparty plaintiff has not been diligent inthe prosecution of the third party complaint, or inprocuring determination of the principal action and that there 

### isno 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 

### iswhether the District Court abused its discretion in dismissing the third party complaint forwant of prosecution. The rule of civilprocedure which governs the dismissal of an action for failure toprosecute isRule 41(b), M.R.Civ.P. It provides inpart:"INVOLUNTARY DISMISSAL

# -- EFFECT THEREOF. For failure of the plaintiff toprosecute or tocomply with these rules or any order of court, a defendant may move for dismissal of an action or of any claimagainst him. 

# ** *It It 

### is generallyheld, inthe absence of a statuteprescribing time limitations forbringing an action to trial, that the matter of dismissal forwant of prosecution 

### is a matter addressed tothe sound discretionof the trialcourt. This Court stated inCremer v. Braaten, (1968), 151Mont. 18, 19, 20, 438 P.2d 553: "It 

### iswithin the discretionof the trialcourt todismiss an action if ithas not been prosecuted with reasonable diligence. It ispresumed the trialcourt acted correctly and 

### its decision willnot 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, 55Mont. 210, 175 P. 876." In the instant case, Jones argues the District Court abused its discretion indismissing the cross-complaint asrespondents have shown no actualprejudice occasioned by the delay, as all witnesses arepresently available for trial. Likewise, Jones contends the delay attributable tohim was not exceedingly lengthy, thus failing togive rise toa presumption of prejudice. We cannot agreewith this contention inview of the conduct of Jones during the discovery phase of the the proceedings. It 

### iswell established inMontana law that an actionmay 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), 132Mont. 377, 319 P.2d 957; Cremer v. Braaten, supra. The unanimous weight of authority demonstrates that the rule 

### is equally applicable toa defendant's failure to diligently prosecute a cross-claim or counterclaim. Seaman v. Superior Court of Marin County, (1920), 183Ca1.47, 190 P. 441; Harris

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

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

### 27 CJS.Dismissa1 & Nonsuit 565. It was initiallyheld inMontana thatmere lapse of time 

### is insufficient initself tojustify a dismissal. State Savings Bank v. Albertson, (1909), 39 Mont. 414, 102 P. 692. However, in commenting upon the rule inCremer v. Braaten, supra, this Court stated: "Plaintiff argues that the action could not be dismissed asdefendant has shown no injuryby 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, 132Mont. 377, 319 P.2d 957." 151Mont. 20. An unreasonable delay therefore operates toplace upon the party seeking relief the burden of demonstrating a reasonable excuse forhis inaction. Here, however, we find the delay occasioned by Jones' inaction tobe unreasonable. Jones failedtotake any significant action towards a final determination of the case for atleast three years prior tothe dismissal, and has offered no excuse for the delay. Jones' failure to timely respond to certain interrogatories, and failure to appear ata scheduled deposition characterize his inactionregarding furtherance of an ultimate resolution of his claim. Asno abuse of discretion indismissing the cross-claim has been demonstrated, the order dismissing such claim infavor of respondents and each of them 

### is af 

# %+!,We Concur: 

# zd $.%YCPQ Chief Justice

Justices

# .