Page:North Dakota Reports (vol. 48).pdf/825

 Defendant made two motions to dismiss the action because it was not brought to trial in 5 years. The motions were under the statute, which is, in effect, that when a party neglects or fails for 5 years to bring an action to trial, it is deemed to be dismissed and abandoned, and the court shall make an order dismissing the action. Code, § 7958. Here is the chronology of the case: November 2, 1908. Cropper’s lease by plaintiff for 1909. September 30, 1909. Alleged conversion of cropper’s share of wheat. January 26, 1914. Action commenced. November 9, 1917. After the lapse of 3 years and 9 1/2 months, complaint filed. June 30, 1919. Five years and 5 months after the action was commenced, first motion was made to dismiss. June 19, 1921. Second motion to dismiss. February 2, 1921. Date of trial, which was 7 years after the commencement of the action.

There is no claim that defendant stipulated or in any way consented to a continuance of the action. It is true that on December 9, 1918, defendant obtained an order changing the place of trial from Ward county to Pierce county, and it is claimed that he thereby delayed the trial, but there was a lapse of 4 years and 10 months from the commencement of the action until the change of venue. The statute is peremptory. It is that an action shall be dismissed for a neglect or failure to bring it to trial within 5 years. The court. has held the statute to be analogous to an ordinary statute of limitations; that it is a statute of repose; also, that an inexcusable delay during 3 of the 5 years would warrant a dismissal under the statute. Miller v. Minckler, 30 N. D. 367, 152 N. W. 664.

In his brief, on p. 6, counsel for plaintiff says:

“The first motion to dismiss was made before the 5-year period had expired.”

That is not true, because the action was commenced by personal ser- vice of the summons and complaint on January 26, 1914, and the first motion to dismiss was on June 2, 1919, and to accommodate counsel for plaintiff, it was continued until June 30, 1919. That was 5 years and § months after the commencement of the action. Then it is said:

“The next term of court was reached after the 5-year period, so plaintiff brought the action for trial at the first opportunity.”

“Doubtless counsel means the first opportunity after the first motion to dismiss, but not the first, the second, nor the third opportunity during the first 5 years. Then he says: