I respectfully dissent. This suit was started for the September, 1936, term of the district court. After several terms had passed during which appellant failed to appear or plead, a special appearance was, on May 8, 1937, entered for him by attorneys James B. Ryan and E.A. Baldwin. On June 10, 1937, the court overruled this special appearance and ordered appellant to plead within 5 days. Appellant did not comply with this order. On July 16, 1937, the court ordered him to plead by noon of July 21, 1937, under penalty of default, of which attorney Baldwin was given notice. This order also was ignored, but on July 21, 1937, appellant, through attorney Baldwin, appealed from the order overruling his special appearance. No supersedeas was filed and no stay was sought. Nor did appellant ever take any steps to prosecute said appeal. On November 8, 1937, the court again ordered appellant to plead within 5 days under penalty of default. In accordance with the further order of court attorney Baldwin was promptly notified, both by telephone and by personal conversation. No pleading was filed, and on November 15, 1937, default was entered.
I think the trial court rightly found appellant and his counsel had been "guilty of inexcusable carelessness and forgetfulness and lack of diligence and inactivity."
The basis of the majority holding appears to be that appellant was not given sufficient opportunity to act after the *Page 289 order of November 8, which required a pleading within 5 days under penalty of default. I do not agree with this. Under the order of July 16, default might properly have been taken at any time after July 21, and without further notice. Appellant had then lost his right to object to default in the absence of pleading or a definite agreement prior to such default. No such agreement appears. The belated letter of attorney Ryan, after he also had been advised of the order of November 8, did not constitute an agreement for further delay. This letter merely asked for time to notify attorney Baldwin. But Baldwin had already been twice notified of the order of November 8. That fully complied with the request made in Ryan's letter. Even though it had been received before default was taken the letter would not have altered the situation since the attorney for appellee knew Baldwin had been personally informed of the order several days before.
The record contains no denial by Baldwin that he was at all times kept fully advised of the orders of the court. No affidavit was secured from Baldwin, the attorney who was in active charge of the litigation for appellant. Its unexplained absence gives rise to the inference that he was fully cognizant of every order made, and that he knew of no circumstances which would bolster the effort to set aside the default.
The writer of this dissent does not construe our previous holdings as sustaining the view of the majority that a record of this character evidences an abuse of discretion in the refusal to set aside a default. It is the duty of a trial court to require that litigation be conducted in a prompt and orderly manner. This cannot be effectively performed without support from appellate courts. For this reason rulings involving such functions should be sustained unless clearly erroneous. Any other course would tend to impair the power of a court to properly control the conduct of parties and matters within its jurisdiction.
If the judgment in this case was not fully supported by the pleadings it might have been reduced in amount or set aside and resubmitted for further proof as upon default. The ruling expunging the default in effect pardons appellant's failures to comply with repeated orders of the trial court and thus permits him to profit by the delay which resulted from the negligence of his own attorneys. *Page 290