¶1(specially concurring). I am of the opinion that the trial court did not err in overruling defendant’s motion to dismiss the action. In my opinion the defendant failed to show that the plaintiff took no action to bring the case to trial within the 5-year period specified in § 7598, C. L. 1913.
¶2I am also of the opinion that the evidence was sufficient to sustain the special finding of the jury, and that the judgment as modified should be affirmed.
¶3(dissenting). This is an action for the conversion of wheat on September 30, 1909. On' a special verdict the plaintiff recovered a judgment against defendant for the value of 557Jf> bushels of wheat at 88 cents a bushel, being $490.60. The interest and costs made it $891.18. The verdict is dated February 3, 1921.
¶4*801Defendant made two motions to dismiss the action because it was not brought to trial in 5 years. The motions were under the statute, which is, in effect, that when a party neglects or fails for 5 years to bring an action to trial, it is deemed to be dismissed and abandoned, and the court shall make an order dismissing the action. Code, § 7958. Here is the chronology of the case: November 2, 1908. Cropper’s lease by plaintiff for 1909. September 30, 1909. Alleged conversion of cropper’s share of wheat. January 26, 1914. Action commenced. November 9, 1917. After the lapse, of 3 years and 9^' months, complaint filed. June 30, 1919. Five years and .5 months after the action was commenced, first motion was made to dismiss. June 19, 1921. Second motion to dismiss. February 2, 1921. Date of trial, which was 7 years after the commencement of the action.
¶5There is no claim that defendant stipulated or in any way consented to a continuance of the action. It is true that on December 9, 1918, defendant obtained an order changing the place of trial from Ward county to Pierce county, and it is claimed that he thereby delayed the trial, but there was a lapse of 4 years and 10 months from the commencement of the action until the change of venue. The statute is peremptory. It is that an action shall be dismissed for a neglect or failure to bring it to trial within 5 years. The court has held the statute to be analogous to an ordinary statute of limitations; that it is a statute cf repose; also, that an inexcusable delay during 3 of the 5 years would warrant a dismissal under the statute. Miller v. Minckler, 30 N. D. 367, 152 N. W. 664.
¶6In his brief, on p. 6, counsel for plaintiff says:
“The first motion to dismiss was made before the 5-year period had expired.”
¶7That is not true, because the action was commenced by personal service of the summons and complaint'on January 26, 1914, and the first motion to dismiss was on June 2, 1919, and to accommodate counsel for plaintiff, it was continued until June 30, 1919. That was 5 years and 5 months áfter the commencement of the action. Then it is said:
“The next term of • court was reached after the 5-year period, so plaintiff brought the action for trial at the first opportunity.”
“Doubtless counsel means the first opportunity after the first motion to dismiss, but not the first, the second, nor the third opportunity during the first 5 years. Then he says:
*802“Proceedings were on for a trial of the action when the motion to dismiss was renewed.”
¶8But the second motion was made on January 19, 1921, and the trial was on February 2, 1921, 7 years after the commencement of the action, and nearly 11 years after the cause of action accrued. If the 5-year limitation statute does not apply in this case, then it is a practical nullity.
¶9The wheat was grown under a cropper’s lease dated November 2, 1908, acknowledged by the lessor, but not by the lessee, and recorded in the office of the register of deeds in August, 1909. The land described is 80 acres of N. W. % 31, and 242 acres in N. W. of 32, 153, 81. The lease was in the nature of a chattel mortgage on all the crops to secure an estimated debt of $2,500 and interest. It should have been filed and indexed as a chattel mortgage. The record was not notice to the defendant. Wheat is grown to be sold. Croppers are poor, and must sell their share promptly after threshing to pay labor, liens, expenses, and chattel mortgages. Hence the time for a lessor to look after his interest in crops is immediately after the threshing, and not after the lapse of nearly 4 years. And when an action is commenced against an elevator company to make it pay a second time for grain purchased and paid for in good faith, there are good reasons against delay in the prosecution of the action. It is well known that croppers and elevator agents are of a movable class. They are here this year and away next year. They are gone and not to be found. In the course of 5 or 10 years some die, some remove to parts unknown, and some forget about matters in which they have no interest. In such a case if the plaintiff may delay the commencement of an action for 4 years and then delay the trial for 7 years, defendant will be at his mercy, because he may then safely testify to anything to win his case. Of course the presumption is that every man is honest and truthful, but the policy of the law is not to lead men into temptation.
¶10The plaintiff does not present an appeal to equity. At about the date of making the cropping contract he took from the cropper a chattel mortgage on his ’whole farming outfit, 12 horses, farm machinery, and such like, worth probably $3,000, to secure $1,754, and in October, 1909, he foreclosed the mortgage and sold all of the property to himself for $1,863, charging an attorney’s fee, $75. Was it a wonder that the cropper ran off and quit the country?
¶11There is no occasion for considering the alleged errors. For the *803failure to move or bring the case to trial within 5 years, the judgment should be reversed, and the action dismissed.