dissenting.
I would affirm.
I dissent because the majority opinion does not afford the trial court the deference we owe it on a discretionary ruling. By the majority opinion this court reverses the State Highway Commission’s judgment on the ground the trial court should have dismissed its exceptions for failure to prosecute. Our decision reverses plaintiff’s judgment on the sole ground of its untimely failure to prosecute, this on the strength of City of Jefferson v. Capital City Oil Company, 286 S.W.2d 65[2] (Mo.App.1956).
I disagree with the majority’s statement that City of Jefferson is controlling. That case was the converse of ours. There, the trial court dismissed the cause and the court of appeals affirmed that as a discretionary ruling. Here, conversely, the trial court refused to dismiss the cause — and we reverse that discretionary ruling. Here, in contrast to City of Jefferson, the trial court denied the motion to dismiss. Our opinion declares the trial court thereby abused its discretion. The sole basis for so holding is that the plaintiff’s ten-year delay was ipso facto unreasonable despite the fact defendants equally participated in that delay.
In exercising its discretion, the trial court here could and did take into consideration other factors in the case. As said in Schreck v. Parker, 388 S.W.2d 538[1Q] (Mo.App.1965): “Whether any given case should be dismissed for want of prosecution does not depend solely upon the length of time during which the case has been pending [17 Am.Jur., Dismissal, etc., § 77, l.c. 152] but must be determined, in the exercise of a sound judicial discretion, upon all of the facts and circumstances of that particular action.”
When the law vests a trial court with the right and duty to rule discretionary matters, as it does in dismissals for want of prosecution, its ruling must be upheld “unless there has been arbitrary or oppressive exercise or palpable abuse of that discretion.” Levee District No. 4 of Dunklin County v. Small, 281 S.W.2d 614[6-10] (Mo.App.1955). And, in Kasper v. Helfrich, 421 S.W.2d 66[1-5] (Mo.App.1967), we refined the definition of “abuse of discretion,” saying “ . . . appellate courts will interfere with the trial court’s exercise of discretion only when it has been manifestly abused; that discretion is abused only when the trial court’s ruling runs against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice . .
The trial court here was confronted with the issue of whether to cast out the parties on the technical ground of want of timely prosecution or to proceed on the merits of the case; it chose the latter course. The majority opinion in effect brands the trial court’s decision as “so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice.”
An appellate court should not so cavalierly substitute its judgment for that of a trial court, as I believe we have done here.