C.I.T. Corporation v. Teague
| Decision Date | 09 March 1943 |
| Parties | C.I.T. Corporation v. Teague. |
| Court | United States State Supreme Court — District of Kentucky |
1. Dismissal and Nonsuit. — An order dismissing action for want of prosecution must be construed as dismissal without prejudice, as authorized by statute, though words "without prejudice" do not appear in order (Civil Code of Practice, sec. 371).
2. Appeal and Error. — A dismissal without prejudice is "final and appealable order" (Civil Code of Practice, sec. 371).
3. Dismissal and Nonsuit. — Where plaintiff's attorney was in court room ready for trial on day of dismissal of action for want of prosecution six days after day set for trial and could easily have been notified of calling of action while he was in his office about 100 yards from court house, order of dismissal should have been set aside and case reassigned for later day in term or continued.
Appeal from Jackson Circuit Court.
J.R. Llewellyn for appellant.
C.P. Moore for appellee.
Before Franklin P. Stivers, Judge.
Reversing.
This is a motion for an appeal from an order or judgment dismissing appellant's petition for want of prosecution in an action to recover a balance of $308.99 alleged to be due on a note.
The action was filed in October, 1939, and the pleadings were completed in April, 1941. Trial was set for April 12, 1941, and the action was dismissed for want of prosecution on failure of the plaintiff or its attorney to appear at the trial. The order of dismissal was set aside pursuant to motion, supported by affidavit showing good cause for failure of appellant's attorney to appear.
The action was again set for trial on the 13th day of the June term, 1942, and on the 19th day of the term an order was entered dismissing it for want of prosecution on account of the failure of the plaintiff or its attorney to appear for trial. The order failed to specify that the dismissal was without prejudice.
On the next day, the 20th day of the term, appellant filed motion to set aside the order of dismissal and reinstate the action on the docket supported by affidavit which was uncontroverted. The affidavit states, in substance, the following facts. The action, although set for trial on the 13th day of the term, was not called for trial on that day or on any succeeding day until the 19th day of the term, other cases being tried in the meantime. Appellant's proof had been taken by depositions and its attorney was in court until 10 A.M. on the morning of the 19th day and then went to his office about 100 yards from the courthouse. The attorney remained in his office and did...
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