Barger v. Baltimore & OR Co.
Decision Date | 20 April 1942 |
Docket Number | No. 7981.,7981. |
Citation | 130 F.2d 401,75 US App. DC 367 |
Parties | BARGER v. BALTIMORE & O. R. CO. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. Norment Custis and Joseph R. McCuen, both of Washington, D. C., submitted the case on the brief for appellant.
Messrs. George E. Hamilton, John J. Hamilton, and Leo N. McGuire, all of Washington, D. C., submitted the case on the brief for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
This appeal involves a suit begun by appellant in the District Court against the Baltimore and Ohio Railroad Company. The complaint was dismissed on motion of the railroad.
The record shows that in May, 1935, appellant, as administrator d.b.n.c.t.a. of the estate of Charles F. Hood, deceased, brought an equity suit against Baltimore and Ohio Railroad Company in the United States District Court for the Western District of Pennsylvania. The railroad answered, there was a trial, and in January, 1938, District Judge Gibson dismissed the complaint with costs. No appeal was taken. In December, 1939, appellant brought in the United States District Court for the District of Columbia a second suit based on the same claim and against the same defendant. In January, 1940, the District Court ordered the complaint stricken from the files, with leave to appellant to file an amended complaint. This appellant filed, and in March, 1940, it too was ordered stricken from the files, with leave to appellant to amend. No amendment or other pleading was filed, nor any further action taken in the case. Instead, in July, 1940, appellant filed in the court below a third suit, likewise founded on the same claim and against the same defendant. On motion of appellee, the complaint in this suit was stricken in October, 1940, and no further proceedings were had.
In the following December, 1940, appellant brought his complaint in the present case, based upon the same claim and against the same defendant. Appellee thereupon moved for dismissal of the complaint, "for the reason that said complaint contains the same claim as that which was contained in other complaints which have been filed in this court and dismissed on motion of defendant". The motion is said to have been filed under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c. On the following 31st of March, Judge Goldsborough dismissed the complaint with costs, and this appeal followed.
The case was submitted on briefs, and appellant insists that the dismissal below was on the ground of "res judicata" and that the defense of res judicata can be raised only by an answer. Appellee insists that the order of dismissal was under Rule 41 of the new rules, and either that the previous actions of the court amounted to involuntary dismissals, which operate as an adjudication on the merits, or that the failure of appellant to prosecute the suits amounted to voluntary dismissals, the second of which operates as an adjudication on the merits.
Judge Goldsborough assigned no reasons for the dismissal, but we think an inspection of the record discloses the real ground of his action to be the failure of the plaintiff (appellant) to prosecute the proceeding. But whatever doubt there may...
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