Massachusetts Fire & Marine Ins. Co. v. Schmick

• Decision Date: 22 April 1932
• Docket Number: No. 9310.,9310.
• Citation: 58 F.2d 130
• Parties: MASSACHUSETTS FIRE & MARINE INS. CO. v. SCHMICK.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F.2d 130 (1932)

MASSACHUSETTS FIRE & MARINE INS. CO. v. SCHMICK.

No. 9310.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1932.

Bailey & Voorhees, and M. T. Woods, Jr., all of Sioux Falls, S. D., and Thomas & Thomas and Dudley D. Thomas, Jr., all of Carrollton, Mo., for appellant.

Tom Kirby, of Sioux Falls, S. D., and George M. Harrington, and M. F. Harrington, both of O'Neill, Neb., for appellee.

Before STONE and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from an order of the District Court of South Dakota dated May 16, 1931, modifying an order and judgment theretofore entered in said court on the 3rd of September, 1930. Both of said orders were entered at the same term of court.

The short facts are substantially as follows: Action was brought by Schmick against the insurance company on a policy of hail insurance in the circuit court of the Eleventh judicial circuit of South Dakota; and thereafter was duly removed to the federal court. An answer was interposed setting up several defenses, but asking no affirmative relief. The case was on the calendar of the September, 1930, term of court for trial at Deadwood, S. D. At the call of the calendar on September 2, 1930, attorneys for the plaintiff and attorneys for the defendant were both present; and announced that they would be ready for trial the next morning. However, when the case was called for trial the next morning, there was no appearance for the plaintiff either in person or by attorney. Defendant offered to submit evidence and proceed with the trial. The court, being of the opinion that this was unnecessary, on motion of counsel for defendant, entered an order on September 3, 1930, dismissing the case on the merits with costs to defendant. Judgment was entered accordingly on the same day.

A motion was filed January 26, 1931, by the plaintiff for an order setting aside the order of dismissal with prejudice, entered on September 3, 1930, and allowing plaintiff to dismiss the action without prejudice at plaintiff's costs. In support of this motion affidavits were introduced to the effect that the plaintiff had instructed his attorneys, including the attorney who appeared at the call of the calendar in the federal court, to dismiss the case without prejudice, inasmuch as plaintiff had brought action in the state court of Nebraska on the same cause of action. The motion papers further set up that plaintiff had instructed another of his attorneys to the same effect, and that motion papers with a form of order had been sent to such attorney at Sioux Falls, S. D., for the purpose of having the dismissal without prejudice made. It was further set up in said motion papers that said attorney appeared before Judge Elliott at Sioux Falls, but was advised that the papers in the case had all been sent to Deadwood, and was further advised to send his motion papers there. The attorney did so, but received word from Judge Wyman that the case had been already dismissed.

In response to this motion to set aside the order of September 3, 1930, the defendant filed a motion March 2, 1931, to strike from the files the motion of the plaintiff. This motion of defendant to strike was accompanied by various affidavits and correspondence setting up, among other matters, that the attorneys for the plaintiff had concealed from the defendant any intention to dismiss the case, but had continued to act as attorneys in the case in various matters as late as the 14th of August, 1930.

A hearing was had on these two motions, and evidence was taken.

On the 16th of May, 1931, the trial court filed an order denying defendant's motion to strike from the files plaintiff's motion; and modifying the judgment of September 3, 1930, in the following language:

"The above entitled matter having come on for hearing before the court during the September, 1930, term of said court upon the application of the plaintiff asking that the judgment entered by the court at this term, and on the 3rd day of September, 1930, be modified by striking therefrom the words, `upon its merits with costs,' plaintiff appearing by Tom Kirby and M. F. Harrington, and the defendant appearing by M. T. Woods, and Thomas & Thomas, and the court being fully advised in the premises and good cause therefore appearing,

"It Is Ordered, that the judgment heretofore entered on the 3rd day of September, 1930, in the above entitled action, and during the present September, 1930, term of this court, be and the same is hereby modified by striking therefrom the words, `upon its merits,' it being the judgment of the court that the above entitled action be dismissed without prejudice."

It is from this order of May 16, 1931, that the present appeal is taken.

Appellee has filed a motion that the appeal be dismissed by this court.

Six grounds are mentioned which may be summed up in the statement that the entry by the court of the second order at the same term was within the court's power; and, as the order left standing no judgment on the merits, there was nothing from which to appeal.

The first...