concurring.
I concur in the result. The complaint was filed in December 1953. Defendant moved to strike portions of the complaint on 9 February 1954. The motion was allowed but not until 2 February 1955. Answer was filed on 15 February 1955. The case was set for trial on 21 November 1955 but was taken off the docket by the court at plaintiffs’ request. Counsel states and it is not denied that the case was set over, owing to conflict of dates, to a time to be later fixed by the court. The case was again set and again taken off *77the docket because of conflicting dates. Thereafter on May 31, 1956 plaintiff husband died.
Prior to 16 January 1957 notice was sent to the attorneys of record that unless some action was taken by January 20, 1957, the case would be dismissed for want of prosecution. On 16 January 1957 counsel for plaintiff wrote the judge that plaintiff was ready for trial. He said, “We believe we have a good cause of suit and desire to try it and will make any showing required, if you can give me an idea of what you wish me to show.” On 18 January the trial judge in Canyon City wrote counsel for plaintiff at Vale, and said, in part:
“Section 18.260 O.E.S. provides that the case shall be dismissed unless some good cause is shown why it should be continued. I presume that the next move is some sort of showing as to why it should be continued as a pending case. * * *”
In that letter he also said:
“I had assumed, after I had twice set the case down for trial, and then taken it off again, and with the death of the plaintiff, that the case would never be tried. * * *”
On 22 January 1957 the trial court made an order dismissing the case, which was amended by a later order entered nunc pro tunc as of 22 January 1957. It would appear that the two continuances must be presumed to have been made for good cause since they were made pursuant to order of the court. The letter of the judge dated 18 January 1957 which suggested that “the next move is some sort of showing” indicated that some reasonable time would be allowed in which to make the showing, yet the case was dismissed on the 22nd of January. Wliat the mail service may be from Canyon City to Vale does not appear, but since the plaintiffs’ *78attorney indicated a desire to make a proper showing and the judge told him that a showing was the next move, it seems clear that the order of the 22nd was under the circumstances made with undue precipitancy. Again, the trial judge himself explains a portion of the delay. On learning of the death of the plaintiff on May 31, 1956, leaving only his wife as plaintiff, he assumed that the case would never be tried. This may explain why the court did not reset the ease for trial at the September term 1956.
On the whole record I am of the opinion that in dismissing the case as and when done, the court went beyond the bounds of a sound judicial discretion, though influenced by most commendable motives which might well be shared and acted upon by many other judges. For these reasons I concur in the result and hold that under the circumstances error was committed in dismissing the case.
I cannot concur in that portion of the majority opinion which construes the statute ORS 18.260 to mean that if the plaintiff before the next regular motion day notifies the court that plaintiff has a just cause and is willing to proceed promptly, the court cannot, acting under the statute, dismiss the case even though it be found that there has in the past been unreasonable and inexcusable delay.
The majority concedes that a court within the limits of sound discretion has inherent power to dismiss a case because of unreasonable and inexcusable delay in the past. The statute authorizes dismissal for want of prosecution unless good cause is shown why it should be continued as a pending case. Want of prosecution refers to the past and to failure in the past to prosecute. If in the past there has been long and apparently unreasonable delay, then the requirement that *79good cause be shown why the case should be continued as pending implies that the showing should explain the past delay.
I see no reason for giving the court a split personality by holding that if the court in an order states that it is acting on its inherent power it may dismiss for inexcusable delay, but if it merely cites OES 18.260 it loses such power and must continue the case if plaintiff says he is now ready for trial. I agree that the announcement of plaintiff that he was ready for trial was relevant to the question of dismissal vel non, but it is not the only and controlling consideration which determines whether the court in its discretion should dismiss a case for want of prosecution.
Mr. Justice McAllister joins in this opinion.