Phelps v. Varbel

(dissenting) — I respectfully dissent.

The original case against defendants was instituted late in 1922. Defendants’ answer was filed December 19, 1922. The district court Journal shows the following entry, dated May 23, 1923:

“It is ordered that this cause be dismissed for want of prosecution unless trial notice be served at least 10 days prior to the next term of this court.”

The trial notice was filed November 16, 1923, which was after the next (September) term of court had ended. There was no further order or judgment based upon failure to comply with the order of May 23.

Thereafter, the…