# Petition for Writ of Certiorari — Norton v. Bridges > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1532%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 820 ## Text IN THE al a+ Supreme Court of the United States OCTOBER TERM, 1988 HELEN PAGE NORTON, individually and as trustee for the use and benefit of Dale Page Norton and John Jay Norton, and DALE PAGE NORTON and JOHN JAY NORTON, on their own behalf, Petitioners, Vv. RUSTE DURNELL BRIDGES, Deceased, for whose estate no administrator has been appointed, formerly a disabled person under the law of Illinois and Successor Trustee of the John L. Page Trust, who, pending the appointment of an administrator, is being treated as in being for all pur- poses that are necessary for the protection of others, and PATRICK T. MURPHY, individually and as Public Guardian of the County of Cook, State of Illinois, as Guardian of her Estate, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE WISCONSIN COURT OF APPEALS, DISTRICT IV HUGH M. MATCHETT 5834 S. Stony Island Avenue Chicago, IL 60637 (312) 643-0318 Attorney for Petitioners rr ¢ DECENTT | ‘ ‘ T Jhether under the decisicn cf the United + >t C t oO fF Ay > is + t | 1c ~AaOa > ~ Nr LOT, Lat Wit Ol Dpea o in Hao Gest iti MOD LOR v Bridges, 719 F.2d 1156, 1166 (7th Cir 1983), ordering the Circuit Court of Jefferson County t ee I f ~ 7) ctr J y] ) oint a successor trustee, 2s its first essumption of jurisdiction over the trust and its assets, which it failed to do, 1 which would have entitled it to adjudicate the entire controversy, and under the unpub- { lished order of the Wisconsin Court of Appeals n this case affirming an order cf said circuit rr sing this suit for a purported want Nn court dismi { of prosecution, the State of Wisconsin has de- c i privea petitioners of their procedural rights and property without due process of law, and has denied them the protection and equal pro- tection of the laws, in violation of their federal rights under the 14th Amendment 9 1. ll rT Whether under the decision of this Court 1 Link v. Wabash Railroad Co., 370 US 626, 9-630, 5632-3, (1962), and the decision of the ipreme Court of Wisconsin in Neylan v. Vor- ld, 124 Wis 2d 85, 90, 368 NW2d 648, 651-52 b] 1985), and the decision of the Wisconsin Court Appeals in Rupert v. Home Mutual Ins. Co., 38 Wis 2d 1, 405 NW2d 661 (Wis App 1987), the >cision of the Wisconsin Court of Appeals in yis case in the unpublished opinion below, 1e latter decision is a void judgment for want f any standard to justify a dismissal for want f prosecution, and a deprivation of petition- rs procedural rights and property without due rocess of law, and a denial to them of the rotection and equal protection of the laws, in iolation of the 14th Amendment § 1, to the onstitution of the United States. ill III Whether the trial judge, who entered the judgment dismissing the suit for a purported want of prosecution, had any discretion to do so, when under the Wisconsin statutes the case was deemed ready for trial because more than one year had passed after the summons and com- plaint were filed, and he was under a duty to call the case for a pretrial conference and set the case for trial because more than 60 days had passed since the one year had expired, without depriving petitioners of their proced- ural rights and property without due process of law, and denying them the protection and equal protection of the laws, in violation of their federal rights under the 14th Amendment § 1, under the rule that a judge who is himself res- ponsible for the delay or otherwise remiss in the performance of his own duty, cannot dismiss a suit for want of prosecution. iv IV Whether the circuit court is under a duty rO appcint a successor trustee of the John L. -age Trust and an administrator for the estate of the deceased successor trustee under the trust agreement and the decision of the United States Court of Appeals in this case and the Jisconsin statutes and its in rem and guasi in rem jurisdiction over the assets of the trust estate and its jurisdiction over the person and the estate of the deceased and the person and estate of the public guardian to enforce their duty to account and to enforce their personal liability for their failure to do so. TABLE OF CONTENTS Page QUESTIONS PRESENTED QUESTION I 1 QUESTION II il QUESTION Ifl | QUESTION IV iv TABLE OF CONTENTS V TABLE OF AUTHORITIES vii OPENING STATEMEN 1 OPINIONS BELOW 2 JURISDICTION 3 STATEMENT OF THE CASE 3 REASONS FOR GRANTING THE WRIT 10 CONCLUSION Se vl APPENDIX The Decision of the Wi Court of Appeals, Four sconsin th District, Of April 24th, 1986 The Order Of The Supreme Court Of Wisconsin Denying Petition For Review of December The Judgment of the Circuit Court of Jefferson County, W of December 16th, 1985 6th, 1988 isconsin, Motion To Vacate The Judgment of December 16th, 1985 on January 2nd, 1986 , filed Motion To Vacate The Judgment of December 146th, 1985 on April 28th, 1986 The Order of the Circu Of Jefferson County, W denying the motions to , filed it Court isconsin, vacate the Judgment of December 16th, 1985, of June 20th, 1986. Page The Decision Of The United States Court Of Appeals for the Seventh Circuit of July 19th, 23792 vil TABLE OF AUTHORITIES Cases Batesville Institute v Kauffman, 85 US 151, 154 (18/1) Breze v Schmitz, 305 Minn 537, 538 233 NW2d 559 (1975) Copeland v Bragg, (Minn App), 378 NW2d 35, 39 (1985) Crown Inter. City of Elkhart, (Ind App), 430 NW2d 921 (1982) Will of Hill, 261 Wis 290, 298 (1951) Link v Wabash Railroad Co., 370 US 626, 6029, 632 (1962) Maxwell v U of M, 159 Mich App 417, ZO7 NW2d 16 (1987) ; McWilliams v Gough, 116 Wis 5/76, 583 (1906) Mikos v Sarasota Cattle Co., 453 So2d 402 (Fla 1984) Neylan v Vorwald, 124 Wis 2d 85, 90 368 Nw2d 648, 651 (Wis 1985) a 31 31 Vill Norton v Bridges, 712 F2d 1156, 1166 (7th Cir 1983 Norton v Bridges (Wis App 1988 Nyberg v Cambridge State Bank, 245 Minn 112, 23 NW2d 345, 347-8 (1955) Rupert v Home Mutual Ins. Co. 138 Wis 2d 1, 405 NW2d 661 (Wis App 1987) Constitution of the United States Fourteenth Amendment 8 1 Federal Statutes: za US Code §& 12757(3) é", ie) 4) > ! No NDS 1 ot NR RR ONW re OF ~) OV > PPP Yr 1 30 Page Wisconsin Statutes 6 702.2742) 24 § 802.09(1) 56 § 802.10(2) 18 32 36 § 804.12(2)(a) 17 18 S 803.03 14 17 18 19 Textbooks George Gieason Bogert, Bogert Trusts 3rd Ed. HB, West Publishing Co., 1952 Page 110 a Sir Edward Coke, First Part of the Institutes of the Laws of England, Eighteenth Edition, Corrected, 1823, by Charles Butler, Special Edition, Copyright 1985, The Legal Classics Library, Volume II, 290.b. VI rs Thomas M. Cooley, Treatise On Con- stitutional Limitations, Boston: Little, Brown, and Company, 1868, Special Edition Copyright 1987, The Legal Classics Library, Page 410 24 Benjamin N. Cardozo, The Nature of the Judicial Process, 109-110 (1922), Cardozo On The Law, Special Edition Copyright 1982 The Legal Classics Library Ecclesiastical Sources Holy Bible, Matthew 7:1-5 St. Thomas Aquinas, Treatise On Justice From Summa Theologica Second Part of Second Part, Questions 57-122, Q. 60 Art. 2, Pages 1447-8 St. Paul, reference to, Herman Melville, Moby Dick, The Modern Library Giant Edition 1944, Page 68 34 33 33 IN THE Supreme Court of the United States OCTOBER TERM, 1988 HELEN PAGE NORTON, individually and as trustee for the use and benefit of Dale Page Norton and John Jay Norton, and DALE PAGE NORTON and JOHN JAY NORTON, on their own behaif, Petitioners, Ve RUSTE DURNELL BRIDGES, Deceased, for whose estate no administrator has been appointed, formerly a disabled person under the law of Illinois and Successor Trustee of the John L. Page Trust, who, pending the appointment of an administrator, is being treated as in being for all pur- poses that are necessary for the protection of others, and PATRICK T. MURPHY, individually and as Public Guardian of the County of Cook, State of Illinois, as Guardian of her Estate, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE WISCONSIN COURT OF APPEALS, DISTRICT IV is and aiso ate page 4f e ee It has also ignored petitioners’ first amendment to their petition filed on April 2nd, 1984, where the first part of the title of the case was changed to read: "Helen Page Norton, individually and as trustee for the use and benefit of Dale Page Norton and John Jay Norton, and Dale Page Norton and John Jay Norton,.on their own behalf, Petitioners.", by disregarding her status as trustee, and her children's right, as adult beneficaries, to petition on their own behalf ft has also ignored the basic constitu- tional issues that were raised by petitioners in their motion to vacate the Order of Decem- ber 16th, 1985, which said: "Under the circumstances as they understand the situation, the Order of December 16th, 1965, is a depri- vation of procedural right and remedy | } 1} A} AP PRaAaae +? } , a + —3 WK le , WIiLTNOUT CHUL t AG Sees Ol WIS GOS ati LAW y ~~ and a denial to them of the protec- tion and equal protection of that law, in violation of their rights under the Constitution of the State of Wisconsin and their federal rights under the 14th Amendment, Section 1, to the Constitution of The United States, and under 42 USC Section 1983." and their argument at page 10 of their brief on appeal that the Orders of December 16th, 1985, and June 20th, 1986, are void orders, depriving petitioners of their property with- out due process of law, and denying them the protection and equal protection of the laws, in violation of the Constitution of the State of Wisconsin, and the 14th Amendment, Section 1, to the Constitution of the United States. The circuit court and the Wisconsin Court of Appeals have completely ignored the decis- ion of the United States Court of Appeals, especially the federal constitutional issues decided by it that are the law of this case unless reversed by this Court. —10— REASONS FOR GRANTING THE WRIT In Link v Wabash Railroad Co., 3/0 U.S 626, at pages 629-633, this Court said; The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue delays in the disposit- ion of pending cases and to avoid congestion in the calendars of the District Courts. The power is of an¢ cient origin, having its roots in judgments of non-suit and non prose- quitur entered at common law, €.2%., Rlackstone, Commentaries (1768), 295-296, and dismissals for want of prosecution of bills in equity, e.2., id., at 451, Tt has been expressly recognized in Federal Rule of Civil Procedure 41(b) . . . . The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power, ' governed not by rule or statute but by the contro] necessarily vested in courts to manage their own affairs so as to achieve the orderly and exped- itious disposition of cases. . . Nor does the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing necessarily render such a ae | oe dismissal void. It is true, of course, that "the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the ekant for which the constitutional protec- tion is invoked." Anderson v. Luckett, 321 U'S. 233, 246. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The ade- quacy of notice and hearing Seba enhtt ie proceedings that may affect a party' rights turns, to a considerable ex- tent, on the knowledge which the cir- cumstances show such a party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hear- ing. ; . . Petitioner never sought to avail himself of the escape hatch pro- vided by Rule 60(b). Accordingly, when circumstances make such action appropriate, a Dis- trict Court may dismiss a complaint for failure to prosecute even without affording notice of its intention to do so or providing an adversary hear- ing before acting. Whether such an or- der can stand on appeal depends not on power but on whether it was within the permissible range of the court's discretion. _ For our purpose holds, and there is a felt need, that this Court grant certiorari, and use this case to build a federal standard on your decision in the Link case, as a matter of due process of law, and of the protection and equal protection of the laws, under the 14th Amen?tment, Section 1, to the Constitution of the United States, by recognizing an inher- ent limitation on the inherent power of a court to dismiss a suit for want of prosecu- tion, by holding that a court has no discret- ion to dismiss a suit for want of prosecution when the court itself is remiss in.its duty to appoint a trustee, or to obey the mandate of a superior court, or to set the case for a pretrial conference, or to call the case for a pretrial conference, or to set the case for trial, or to call the case for trial, or to try the case on the merits, or to give advance | warning that the suit will be dismissed for want of prosecution unless that situation is immediately corrected or by a given date, or without exhausting all reasonable alternatives to dismissing the suit for a purported want of prosecution. For it is absolutely necessary that in ex- ercising the awful power of dismissing a suit for want of prosecution, and deciding the case in favor of the adverse party without regard to the merits of the case, a court must be ac- ting with the cold neutrality of a stern im- partial judge, and not from personal prejudice against the petitioner or in favor of his op- ponent, or simply an urge to get rid of the litigation without passing on the merits of case because of some conflict of interest that is not immediately apparent, such as his inab- ility to understand the case or to cover his own dereliction of duty. otic This brings us to the consideration of the Wisconsin statute and the decisions of the Su- preme Court of Wisconsin and the Wisconsin Court of Appeals on the subject. Sec. 805.03, Wis. Stats., provides in ma- terial part: "For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to or- ders authorized under s. 804(2)(a). Any dismissal under this section oper- ates as an adjudication on the merits unless the court in its order for dis- missal otherwise specifies for good cause shown recited in the order. In Neylan v Vorwald, 124 Wis 2d 85, 94, (Sup. Ct. 1985), 368 NW2d 648, the Court said: "The present rule governing this case is sec. 805.03, Stats., which was adopted by supreme court order, 67 Wis. 2d 690, as part of the Wis- consin Rules of Civil Procedure. The Wisconsin rules were prepared by the =<) judicial council and were patterned after the Federal Rules of Civil Procedure." At page 92, it states: "The present rule, sec. 805.03, does not state any time limit within which trial must proceed after com- mencement of the action and therefore does not import any constructive know- ledge to litigants or their counsel of the outside time limits a court will consider as being a ‘failure to prose- cute,’ nor does it provide that actual notice be given. Where no constructive notice is given, fundamental fairness and due process require a litigant be given actual notice before a court en- ters a dismissal without notice and motion of any party. Otherwise, what a judge feels to be a failure to prose- cute a case will depend on the indi- vidual judge's thinking, the court's calendar, and the rate of case intake and disposition. Section 805.03 alone imports no knowledge in advance to litigants of what is expected in pros- ecuting a case in a particular trial court to avoid dismissal consequences under the provisions of sec. 804.12(2) (a) and particularly sec. 804.12(2) (a) Oy At page 94, the court said: "Section 805.03, Stats., with ref- erence to sec. 804.12(2)(a), forewarns of a dismissal penalty for failure to 5. to prosecute an action, there is no constructive notice of what must be obeyed to avoid a dismissal." At page 95 it states: "We find the dismissals ordered by the trial court without actual notice before entry precluded the opportun- ity to be heard. Therefore, they were lacking in that fundamental requisite of due process. The court of appeals has held that: ‘Judgments entered con- trary to due process are void. We accept that holding and find that where no advance actual notice of dis- missal which contains a clear standard or definition of what constituted 'the failure to prosecute,’ due process is lacking and the dismissal judgments are thereby void." The instant case is governed by the Neylan - case because the Nortons had no basis, either in statutory or case law, to anticipate the trial court's definition of "failure to prose- cute." In Rupert v Home Mut. Ins. Co., 138 Wis 2d 1, 405 NW2d 661 (Wis.App. 1987), the Court of Appeals reversed and remanded an order dis- a, missing a suit for want of Prosecution. At Id. 9-10, 405 NW2d at 664, it said: "While sec. 805.03 fails to define the outside limits of ‘failure to pros- ecute,' the statute governing calendar practice provides a basis for the trial court to create these limits. Section 802.10(2), Stats., provides: Unless excepted under sub. (1), all actions and special proceedings are deemed ready for trial one year after the summons and complaint are filed. Within 60 days after the expiration of one year, the court shall by order set dates for a pretrial conference and for trial. [i&mphasis added. } "By setting pretrial conferences and trial dates, the court defines diligent prosecution of an action. After one year has passed, a plaintiff may rea- sonably assume that the court will set those dates within sixty days. It is unreasonable that a plaintiff, antici- pating receiving pretrial conference and trial dates, should instead receive a notice of intent to dismiss. Here, rather than setting the required dates, and thus vroviding the plaintiff with an outside limit of conduct expected for diligently pursuing its action, the trial court moved to dismiss the one- year-old suit. iia os a 302. 10(2) is silent as to the effect of ‘deeming' an ac- tion ready for trial. We read sub. (2) merely to place a duty on the trial court to set dates, within a specified period, for the pretrial conference and trial. 'Deeming' an action ready for trial simply gives voice to a leg- islative presumption that after one year an action should have progressed to the point where the court can in- telligently exercise its duty to set the required dates. Here, the record shows no attempt to set the required dates, nor does the record show that Rupert would have been unprepared for a pretrial conference or trial. We cannot agree that a statute governing trial court calendar practice imputes to the trial court the power to impose the se- vere penalty of dismissal only one year after an action's commencement. "Moreover, sec. 802.10(2) is si- lent as to any consequences if an ac- tion is not ready for trial within one year. In contrast, sec. 802.10(3) (d), governing scheduling conferen- ces, specifically makes violation of scheduling orders subject to venal- ties under sec. 805.03, Stats. We find significant the absence of a s-milar provision in sub. (2). "We must view a statutory action in its entirety. [Citation omitted. ] Where a comprehensive statute spe- cificically grants a power in one section and is silent with respect to a ae that power in another, we must assume a legislative intent to exclude the exercise of power under the latter section. [Citation omitted.] The leg- islature's silence in sub. (2) re- veals an intent to exclude sec. 805. 03 venalties from sec. 802.10(2). Sec- tion 802.10(2), 'deeming' an action ready for trial one year from filing, does not satisfy the fair and ade- quate warning required by due process. "We are not suggesting that a liti- gant may sit idly by for the first year of a lawsuit awaiting pretrial conferences and trial dates. Rather, we hold that before imposing a sanc- tion as drastic as dismissal, advan- ced notice is required. The federal rule empowering trial courts to dis- miss for failure to prosecute has been construed to require the court to ex- plore less drastic aiternatives prior to dismissal. See 24 Am. Jur.2d Dis- missal sec. 49 (1983). Several alter- atives are available to the trial court to accomplish the goal of dili- gent prosecution of claims. For exam- ple, sec. 802.10(3) permits the court to call a scheduling conference with- in ninety days of an action's com- mencement. Further, even absent a pre- liminary conference, courts are able to advise each litigant at the time a lawsuit is filed of any local rules and penalties." The key line in the Rupert case is the - oo line reading: "By setting pretrial conferences and trial dates, the court defines diligent prosecution of an action." The trial judge in the instant case never defined it, unless it can be said that he defined it by his conduct in doing nothing between April 2nd, 1984, and December 16th, 1985, when he dismissed the suit for want of prosecution, when it was his duty to appoint a successor trustee, and call a pretrial conference, and set the case for trial. Under the judge's own standard there was no want of diligent prosecution of the ac- tion, only lack of a diligent performance of duty by the judge. The decision of the Wisconsin Court of Ap- peals in the Rupert case, and the decision of the Supreme Court of Wisconsin in the Neylan case, are based upon the decision of this Court in the Link case, and assuming that each decision is correctly decided, the judgment of oe the Wisconsin Court of Appeals and the judg- ments of the circuit court appealed to it in this case are void judgments beyond the per- missible range of the court's discretion be- cause the Wisconsin statutes and cases do not contain a clear standard of what constitutes failure to prosecute, and no advance actual notice of dismssal which contained a clear standard of what constitutes failure to pros- ecute was given, and the trial judge failea to define diligent prosecution because he failed to appoint a successor trustee, and to set the case for a pretrial conference after the case had been on file for over a year and was deemed ready for trial, and to set it for trial, with the result that due process is lacking. So also is the protection and equal pro- tection of the law. 29 The late George Gleason Bogert, in his Handbook of the Law of Trusts, Third Edition, Hornbook Series, West Publishing Co., 1952, Page 110, stated our position precisely, when he wrote: "Equity has as a part of its inherent jurisdiction the power and the duty to see that trusts are protected and carried Out, and the filling of the office of trustee is a part of this function." This position is confirmed by Sir Edward Coke, in his First Part of the Institutes of the Laws of England, Fighteenth Edition, Cor- rected, 1823, by Charles Butler, Special Ed- ition, Copyright 1985, The Legal Classics Li- brary, Volume Il, 290.b VI, where it States: "In a court of equity it is suf- ficient that the trust appears and if the party creating the trust has not appointed his own Frustee, the court of equity will follow the legal estate, and decree the person in whom it is vested to execute the 2 trust. See ant. 113, note 2, it be- ing a rule which admits of no excep- tion that a court of equity never wants a trustee," In Batesville Institute v Kauffman. 85 US 151, 154 (1871), this Court said: "That this court has power to appoint a new trustee, and to compel the performance of the trust by him, is quite certain. It is, however, equally within the power of a court of equity to decree and enforce the execution of the trust through its own officers and agents, without the intervention of a4 new trustee, (Story, Equity Jurisprudence, §§ 976, 1060, 1061.)" In McWilliams v Gough, 116 Wis 576, 583, (1906), the court said: "A trust never fails for want of a trustee. While the office becomes vacant the trust continues, its exe- cution only being interrupted. Ju- dicial power, under the equity jur- isdiction, will fill the office in form or effect, and compel and su- pervise the execution of the trust where there is no Statute to provide for the emergency," = In Will of Hill, 261 Wis 290, 298 (1951), the Supreme Court of Wisconsin said: "Tf the Foundation is in fact unqualified to be a trustee and de- clines to qualify, it is a general rule that a trust never fails for want of a trustee and the court, in its equity powers, may appoint one or may execute the trust by its own officers." § 701.17(2) Wisc. Stats., provides: "Tf it appears necessary, the court may appoint a special trustee until a successor trustee can be appointed or, where a trust has ter- minated, to distribute the assets. A special trustee may be appointed without notice and may be removed whenever the court so orders. Such special trustee shall give such bond as the court requires and shall have the powers conferred by the order of appointment and set forth in any letters of trust issued him." It necessarily follows that at all times during the period December 28th, 1983, to and including December 16th, 1985, the trial judge had the inherent power and the duty to appoint a successor trustee and failed to do so. a - In Maxwell v U of M, 159 Mich App 41/7, (1987), 407 NW2d 16, MCR 2.502, provided for dismissal for lack of progress, but also pro- vided that an action could not be dismissed if it was set for trial, or scheduled for a pretrial conference, or before a date speci- fied for completion of discovery. MCR 2.501(A) (1), concerning scheduling trials, provided: "Following the time of completion of discovery as determined under MCR 2.301, the court shall schedule a pretrial conference under rule 23a01. schedule the action for mediation un- der MCR 2.403, or schedule the action for trial. [Emphasis added. ]” Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.502, Author's Comment, p ll, states in relevant part: "At the conclusion of,the time set for discovery, the court’ must set the action for pretrial or trial. Thus all actions in which an answer has been filed are precluded from the operation of MCR 2.502 until trial or other disposition of the action is completed." In their footnote, the commentators said: "In circuits which have approved local court rules requiring that one of the parties file a demand for trial, etc. before trial or pretrial is scheduled, those cases in which no such demand is filed within one year from the close of discovery are also subject to dismissal under the provisions of Rule 2.502. The authors would note, however, that the indi- vidual circuit must have passed a lo~ cal court rule altering the provis- ions of MCR 2.502. If it has not, but simply possesses an informal proced- ure calling for such filings, the authors question how the court may dismiss an action when the basis of dismissal is the court's own non- compliance with MCR 2.501, i.e., if the court had complied with MCR 2.501 and independently set the case for trial, the case would not be subject to dismissal under MCR 2.502." In that case the plaintiff appealed from an order dismissing with prejudice for no progress his wrongful discharge suit pursuant to had not complied with MCR 2.501. The Court of MCR 2.502, in spite of the fact the court Appeals at Page 422 (407 NW2d 19) said: Py = "W/hile the Ingham Circuit Court (Thirtieth Judicial Circuit) Local Rules may have formerly required a party to file a demand for a pre- trial and trial before a case will be put on the docket calendar, the current Local Court Rules which be- came effective on March 1, 1985, with the new Michigan Court Rules contain no such provision. See Michi- gan Rules of Court 1986 (West Publish- ing Co.), pp. 755-760. Thus, as the commentators suggest, absent such a local court rule, the trial court may not dismiss this case because the basis for dismissal is the court's own noncompliance with the MCR 2.501 provision that the court itself must set the case for trial." The case is similar to the case at bar because there is no statutory requirement in Wisconsin that a case be noticed for trial, and after a case has been on file for more than a year, it is the duty of the court it- self, within 60 days thereafter, to call a pretrial conference and set the case for trials me” In Crown Inter. v City of Elkhart, Ind App, 430 NW2d 921 (1982), the court held that a remonstrance in annexation proceedings was in the nature of a defense, and such action was not properly subject to dismissal for lack of prosecution, but the statute involved provided that: "W/hen the remonstrance is deter- mined to be sufficient the court sua sponte shall set a hearing date which should be not more than sixty (60) days thereafter." (922.7; and said: "Tn addition the result [of dis- missal] cannot be rationalized as a matter of necessary docket control by the trial judge. The annexation stat- ute imposed upon the court the obli- gation and the duty to order the case for trial. It could have done so rather than issue the rule to show cause." The statement is only common sense. When a court is under a duty to call a case for trial it cannot dismiss the suit for want of prose- cution. This is the crux of our position. = In Mikos v_ Sarasota Cattle Co., 453 So2d 402 (Fla 1984), the Supreme Court of Florida held that once the plaintiff has given notice that it is ready for trial, the trial judge must enter an order fixing a date for trial, and, if he does not do so, is precluded from dismissing the action for want of prosecution. Both parties had noticed the case for trial but the court had not set the case for trial. The court said: "Neither party took any further action, nor did the court, until over a year later on August 11, 1982, when Mikos filed a motion to dismiss for lack of prosecution pursuant to Flor- ida Rule of Civil Procedure 1.440(b). The district court reasoned that since it is the trial court's responsibility to enter an order fixing a date for trial under Rule 1.440(c) once notice of trial is given, the filing of the notice bars the trial court from dis- missing the action for lack of prose- cution "We agree with the decision below in all respects. A trial judge has sole discretion in determining the order in which the cases will be tried at particular times. The rules —30— contemplate that whenever a plaintiff is ready for trial his attorney must notify the court and ask the court to enter an order setting a trial date. It is inappropriate for a trial at- torney to pressure a judge into set- ting a date. We would like to add, however, that if a plaintiff subse- quently indicates that he is not ready for trial, then the filing of the no- tice of trial will not be a bar to a dismissal for lack of prosecution." The case is directly applicable to this litigation. The judge was under a duty to call the case for a pretrial conference and set the case for trial, and dismissed the suit for want of prosecution, and under the Florida case he could not have done so. In Nyberg v Cambridge State Bank, 245 Minn 312, 73 NW2d 345, 347-8 (1955), with one dis- sent, the Supreme Court of Minnesota held that once a case is noticed for trial it could sik be dismissed with prejudice for want of prcose- cution on the preliminary call of the calendar because "'the case could not be so dismissed a. om until it is actually called for trial." In Braze v Schmitz, 305 Minn 537, 538, 233 NW2d 559 (1975), the court refused to adopt any ex- ception to that rule. But where the plaintiff has not noticed his case for trial it could be dismissed for want of prosecution. Copeland v Bragg, (Minn App), 378 NW2d 35, 39 (1985). We agree with these decisions. A case should not be dismissed for want of prosecution until it is actually calied for trial. These cases all support our proposition that a court should not be permitted to dis- miss with prejudice a suit for a purported want of prosecution at the very time the judge is under a duty to call the case for a pre- trial confererice and set the case for trial. We have already established that equity has as a part of its inherent jurisdiction the power and the duty to see that trusts are protected and carried out, and that the filing of the office of trustee is part of that function, but it is equally within the power of a court of equity to decree and enforce the execution of a trust through its own officers and agents. It is evident that the circuit court judge in dismissing this suit with prejudice for a purported want of prosecution during the same period he had failed to perform his duty to appoint a successor trustee or to enforce the trust through his own officers and agents, and during the last part of which period he had failed in his duty to call the case for a pre- trial conference and set it for trial and try it, without offering any justification or ex- cuse for his own inactivity, violated his own duty in doing so, with the result the judgment of dismissal is a void judgment. It certainly is hypocritical. ae The following quotations from ecclesias- tical sources support our position: "Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again. And why beholdest thou the mote that is in thy brother's eye, but con- siderest not the beam that is in thine own eye? Or how wilt thou. say to thy brother, Let me pull out the mote of thine eye; and, behold, a beam in thine own eye? Thou hypocrite, first cast out the beam of thine own eye; and then shalt thou see clearly to cast the mote out of they brother's eye." Holy Bible, Matthew 7:1-5. "Those who stand guilty of griev- ous sins should not judge those who are guilty of the same or lesser sins , A/ man condemns himself so as to deserve to be condemned once again, when, in condemning another, he shows himself to he equally deserving of condemnation on account of another or a like sin." St. Thomas Aquinas, Treatise On Justice From Summa Theo- logica, Second Part of Second Part, Questions 5/7-122, Q. 60, Art. 2, Page 1447-8. "Yea, woe to him who, as the great Pilot Paul has it, while preaching to others is himself a castaway!" Herman Melville, Moby Dick, The Modern Li- brary Giant Edition 1944, Page 68. a ee Judge Benjamin N. Cardozo, in his Nature of the Judicial Process, 109-110 (1922) said: "Some relations in life impose a duty to act in accordance with the customary morality and nothing more. . « « Other relations in Lite, as, e.g., those of trustee and benefici- ary, or principal and surety, impose a duty to act in accordance with the highest standards which a man of the most delicate conscience and the nicest sense of honor might impose upon himself. In such cases, to en- force adherence to those standards becomes the duty of the judge." The higher standard is undoubtedly the stan- dard applicable to a judge in relation to the lawyers and clients appearing before him in the discharge of his judicial duties, and the standard that was applicable in relation to them in dismissing this suit for a purported want of prosecution, and to the Wisconsin Court of Appeals in reviewing this case. It is obvious that the circuit court judge failed to measure up to that standard when he failed to 25 appoint a successor trustee or to enforce the trust by his own officers and agents, and that he failed to measure up to that standard when he failed to call the case for a pretrial con- ference and set it for trial and try it. It may reasonably be inferred from that conduct that the judge had a personal bias or prejudice either against petitioners and their attorney_or in favor of the respondents. It may be reasonably inferred from those facts and inferences of fact that the circuit court judge failed to measure up to the duty imposed upon him to act in accordance with the highest standards which a man of the most del- icate conscience and the nicest sense of honor might impose upon himself when he dismissed the suit for a purported want of prosecution when he had not performed his own duty in the premises.