Kenneth Ellis v. Twin Falls Canal Company

Some seven and one-half years ago, in May 1978, defendant-respondent's canal bank allegedly collapsed, damaging plaintiff-appellant's fish farm and stock. The complaint was filed in October of 1978. In October 1984 the action was dismissed. During that time interval the following proceedings took place. The complaint was served in May 1979, and defendant answered seven days later. In March 1980, defendant filed interrogatories addressed to Ellis. In July 1981, Ellis received a clerk's notice of dismissal of the action and an affidavit was filed as to why the case should be retained. The trial was scheduled for November 1981, but vacated upon stipulation. Trial was reset in March 1982, but vacated upon stipulation since Ellis had filed a petition under Chapter 11 of the Bankruptcy Act. In July, following notice thereof, the action was dismissed and Ellis' motion to set aside that order of dismissal was granted in September 1983. On June 1, 1984, following a telephone status conference, the district Judge set a date in November for a pretrial conference and a date approximately two weeks later for trial setting. It was ordered therein that all discovery be completed by the date of the pretrial conference, that proposed exhibits and witness lists be exchanged at least a week in advance of the pretrial conference, and that a pretrial memorandum as specified in Rule 16(a) be submitted at least one day in advance of the pretrial conference. Ellis had never filed answers to the interrogatories of March 1980, and Twin Falls Canal moved to compel answers to those interrogatories, and on October 28, 1984, moved to dismiss the action for failure to prosecute, or in the alternative to vacate the trial date. On October 30, 1984, the court heard Twin Falls Canal's motion to compel answers to interrogatories. On that date answers to interrogatories were delivered by Ellis. Twin Falls Canal's motion to dismiss was argued that same date, and at the Conclusion thereof the action was dismissed. Ellis first argues that the motion to dismiss was erroneously granted since that motion was not served upon Ellis at least five days in advance of the hearing in compliance with I.R.C.P. 6(d). We do not agree.