Andrews v. Roberts, 14
| Decision Date | 18 May 1962 |
| Docket Number | No. 14,14 |
| Citation | 115 N.W.2d 322,366 Mich. 620 |
| Parties | Lucy ANDREWS, Plaintiff and Appellant, v. David ROBERTS and Bobby Johnson, Defendants and Appellees. |
| Court | Michigan Supreme Court |
Harold L. White, Detroit, for plaintiff and appellant.
Hand, Sullivan, Kiefer & Allen, Robert E. Sullivan, Detroit, for defendants and appellees.
Before the Entire Bench.
SOURIS, Justice (for affirmance).
By this appeal we are asked to review the denial of plaintiff's motion for continuance made the day her case was assigned for jury trial and its dismissal upon her counsel's assertion that he was unable to proceed with the trial. The suit had been started in February of 1959 to recover damages for plaintiff's injuries claimed to have resulted from defendants' negligence in the operation of an automobile.
Following completion of the pre-trial conference, four or five motions for discovery were filed in plaintiff's behalf. Upon denial of three of said motions by the executive judge of the Wayne circuit court, plaintiff filed with this Court in April of 1961 an emergency application for leave to appeal therefrom. Apparently the case was then on the circuit court's calendar of cases ready for trial At the request of our clerk, in order to give us an opportunity to consider and to act upon plaintiff's application and in order to avoid any further delays in the trial of the case in the event plaintiff's emergency application was denied,* the Wayne circuit's executive judge set a date certain for trial of the case.
In the afternoon of May 3, the case was assigned for trial to the Honorable Thomas J. Murphy, at which time plaintiff's counsel appeared before Judge Murphy without his client and without his witnesses but with a motion for continuance, which alleged that he (plaintiff's counsel) was 'unable to attend and conduct the trial of said cause on behalf of the plaintiff due to his illness, which is disabling, unavoidable and not voluntary.' The motion described counsel's illness as a disability 'in the nature of internal disorders, which became evident within the past few days.' The motion was accompanied by an affidavit of counsel describing his disability in the same fashion.
Pursuant to sections 4(b) and 6(b) of Wayne circuit's local rules, Judge Murphy referred the motion for continuance to Judge Chester P. O'Hara, the executive judge. Judge O'Hara refused to grant a continuance, indicating in doing so that he believed the motion had been filed only for purpose of delay. Upon return to Judge Murphy's courtroom and after counsel for the parties had explained to him what transpired before Judge O'Hara, Judge Murphy inquired whether plaintiff's counsel was prepared to proceed with the trial and, upon counsel's reply that he was physically unable to do so, the cause was dismissed with prejudice. Orders denying the motion for continuance and dismissing the cause were subsequently signed and filed, from which orders plaintiff appeals.
We find nothing in this record to justify reversal. The record discloses a course of conduct by plaintiff's counsel which amply supports Judge O'Hara's trenchant...
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Banta v. Serban, 7
...v. Goldstein, 259 Mich. 300, 243 N.W. 12; Reed v. Burton Abstract & Title Company, 344 Mich. 375, 73 N.W.2d 828; and Andrews v. Roberts, 366 Mich. 620, 115 N.W.2d 322. It necessarily follows that a trial court has power to dismiss an action upon the unexcused absence of plaintiff and his co......
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Andrews v. Murphy, 16127.
...so, the suit was dismissed with prejudice. The Supreme Court of Michigan affirmed the action of the state trial court. Andrews v. Roberts, 366 Mich. 620, 115 N.W.2d 322. Plaintiff thereupon filed this action in the district court against State Circuit Judge Thomas J. Murphy under 42 U.S. C.......