Adams v. Cowan, 104
| Decision Date | 07 April 1961 |
| Docket Number | No. 104,104 |
| Citation | 360 P.2d 1013 |
| Parties | John ADAMS, Petitioner, v. R. T. COWAN, Respondent. |
| Court | Alaska Supreme Court |
George T. Yates, Anchorage, for petitioner.
No appearance for respondent.
Before NESBETT, C. J., and DIMOND and AREND, JJ.
Petitioner requests review of an order of the Superior Court dismissing his complaint with prejudice and assessing costs and an attorney's fee for failure to appear for trial.
The petition does not comply with the requirements of Rule 28 of the Rules of the Supreme Court which requires '* * * a direct and concise argument amplifying the reasons for granting the petition as suggested by Rules 23 and 24'. Nor does it adequately explain why relief would not be afforded by appealing from what is an appealable order. A basis for granting review has been left for the court to discover by searching the petition and record.
Review will be granted however as it appears from a study of the pleadings that the peculiar facts of the case may be such that complete relief could not be had by appeal under the circumstances.
The complaint was filed on September 20, 1960. An order dated December 15, 1960 set the case for pre-trial at 9:00 A.M. January 17, 1961. A notice of trial later set the case for trial at 10:00 A.M. January 17, 1961. Upon appearing in court for trial on January 17th, petitioner and his counsel were informed that trial would of necessity have to be postponed until the latter part of that week as counsel for respondent was engaged in trial in another court. Counsel for petitioner advised the calendar clerk that it would not be possible for him to appear during the latter part of that week because of a prior commitment in Kodiak. Counsel for petitioner returned from Kodiak on Saturday, January 21, 1961, and on Monday, January 23, after inquiry made of the calendar clerk, was advised that the case would be tried during the latter part of that week. Petitioner was then advised by his counsel to check in daily with his counsel. At 9:00 A.M. Thursday, January 26, petitioner called his counsel, who held the telephone connection while he checked with the calendar clerk on the calendar status of the case. Petitioner's counsel was advised by the calendar clerk that the trial might be held late that afternoon, but that this was doubtful, as counsel for respondent was then engaged in another court. Counsel for petitioner then advised petitioner to check in with him at 1:00 P.M. that day. At 11:00 A.M. that morning the calendar clerk advised counsel for petitioner that the case was set for trial at 1:30 P.M. that afternoon. By 1:10 P.M. petitioner had not telephoned his counsel, who thereupon commissioned an employee of Associated Investigators, Inc., to go to petitioner's home and bring him to court. Petitioner had no telephone in his home. Counsel for petitioner appeared in court at 1:30 P.M. and...
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