Janousek v. French

• Decision Date: 23 February 1961
• Docket Number: No. 16485 and 16486.,16485 and 16486.
• Parties: Emma JANOUSEK et al., Appellants, v. Louis B. FRENCH, Special Administrator of the Estate of Willis W. French, Deceased, Appellee. Emma JANOUSEK et al., Appellants, v. John MANUS et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

287 F.2d 616 (1961)

Emma JANOUSEK et al., Appellants, v. Louis B. FRENCH, Special Administrator of the Estate of Willis W. French, Deceased, Appellee.

Emma JANOUSEK et al., Appellants, v. John MANUS et al., Appellees.

Nos. 16485 and 16486.

United States Court of Appeals Eighth Circuit.

February 23, 1961.

Joseph O. Janousek, Washington, D. C., and John R. Green, St. Louis, Mo., are on the brief, for appellant.

Everett A. Bogue, Vermillion, S. D. and Louis B. French, Yankton, S. D., are on the brief, for appellee.

Before WOODROUGH, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

By these appeals, appellants, hereinafter referred to collectively as plaintiffs, seek relief from orders of the district court entered on March 22, 1960, whereby their actions were dismissed upon the merits and without trial. In the district court the cases were numbered 1156 and 1157, which we shall adopt for the purposes of this opinion.

Although the issue before us involves only the question of whether the trial court abused its discretion in denying plaintiffs' motions for continuance and thereafter entering judgments of dismissal, the history of this litigation is quite complex, and in the interest of clarity, we indulge in a brief summary of events surrounding the entry of the disputed orders.

Plaintiffs are citizens of the State of Maryland. Plaintiff Joseph O. Janousek is an attorney, with offices in Washington, D. C., who appears pro se and as attorney for plaintiffs. Basically, three cases are involved — the two before us on these appeals, and a third, the initial suit, bearing district court No. 1122, which was instituted in September, 1957. The latter will sometimes be referred to as the "townsite suit." In summary, it may be said that the Janousek family, in the townsite action, asserts title to certain land and property located in the townsite of Janousek, Yankton County, South Dakota, and seeks, through allegations of fraud and misconduct, to set aside and annul certain deeds, a 1919 state court trusteeship order, and a 1948 state court title judgment. This Court recently had occasion to rule upon petitions for intervention by various other property owners seeking to join the Janouseks in the townsite action. Those interested in further details may see Kozak v. Wells, 8 Cir., 278 F.2d 104. The situation was aptly described there, at page 108, in these words:

"* * * this case is seemingly bitter argument, over a tract of land, between what are essentially two groups (one consisting of those persons claiming title primarily through the decedent Janousek and the other of those having to do with title transfers through Bruce and defendant Griffin\'s parents) * * *"

After the townsite action was filed, and in August, 1958, the two suits here involved were instituted. In No. 1156, Willis W. French, now deceased, was the original defendant, and his son, Louis B. French, has been substituted as administrator of the estate. In this action, plaintiffs alleged that French, beginning in 1918, represented plaintiffs in the administration of the estate of Joseph Janousek, deceased, and that he negligently and wrongfully handled the estate, that he breached attorney-client relationships, represented adverse interests, all to the end of depriving plaintiffs of property rights. No. 1157 was brought against appellee Manus, charging him with trespass and damage to plaintiffs' property in Janousek, South Dakota. By order of the trial court on December 23, 1959, plaintiffs were allowed to amend their petition in this suit, joining one Bogue as an additional defendant, alleging that the aforementioned trespass and damage were incited and caused, directly and indirectly by Bogue. It appears that Mr. Bogue, who is an attorney, has represented the interests of various defendants in the townsite action, and that he represents appellees in the two suits before us.

The record reveals that much acrimony has been generated between the parties. Plaintiffs have alleged that there is a general scheme or conspiracy to prevent prosecution of the townsite suit, and that, among other incidents, plaintiff Joseph Janousek has been falsely charged with theft of court files, that a warrant for his arrest has been issued in South Dakota, and that unlawful attempts have been made to extradite him from Maryland. In this respect, it appears that two additional suits were filed in the district court, one brought by Joseph Janousek as plaintiff (No. 1212) on November 25, 1959, the other by Eunice Janousek (No. 1226). Both of these suits are based upon the Civil Rights Statutes, Title 28 U.S.C.A. § 1343; Title 18 U.S.C.A. §§ 241, 242; Title 42 U.S.C.A. §§ 1983, 1985, whereby it is alleged that Louis French, and various state and county officials are engaged in a conspiracy to deprive plaintiffs of their constitutional rights. In the civil rights actions, defendants are charged with interference with constitutional guarantees of fair trial and proper administration of justice; with the right of public assembly; with the right to representation by counsel; and intimidation of property owners and witnesses, and misuse of public offices and abuse of process. In No. 1226, one Kozak has moved to intervene as a party plaintiff, alleging violations of his civil rights.

In this brief summary of the maze of litigation arising from the townsite action, replete with charges and counter-charges of fraud and bad faith, it must be kept in mind that on these appeals, the Court is not concerned with the merits of either plaintiffs' suits, or appellees' defenses thereto. The only question before us is whether the trial court properly exercised its authority in dismissing suits Nos. 1156 and 1157 without trial upon the merits, after refusing to grant plaintiffs' request for continuance. To properly evaluate the action of the trial court, it is necessary to set out a somewhat detailed chronological account of the proceedings leading up to the date of the questioned orders.

In No. 1156, the suit against Willis French, complaint was filed August 15, 1958. On September 4 and September 9, 1958, an answer and amended answer were filed. On March 2, 1959, plaintiffs moved to amend their complaint, adding a second count, and seeking punitive damages. On March 4, 1959, defendant moved for a continuance upon the ground that defendant Willis French had suffered a heart attack and was physically unable to be present for trial. Plaintiffs filed no opposition to this motion, and on March 12, 1959, continuance was granted. On July 21, 1959, a second motion for continuance was filed by defendant, due to the continued illness of Mr. French. Plaintiffs filed an answer to this motion, stating that they did not oppose the continuance, noting that their motion to amend the complaint was still pending. However, plaintiffs requested that dates be set for hearing on various motions pending in No. 1157 and No. 1122, the townsite action, and that after all were disposed of, no further continuances be granted. On July 31, 1959, defendant's second motion for continuance was granted. On December 10, 1959, after the death of Mr. Willis French, defendant filed a motion to dismiss case No. 1156 upon the ground that plaintiffs' cause of action against him did not survive his death.

Momentarily, we give consideration to case No. 1157, the trespass action, which was also filed August 15, 1958: Answer was filed thereto on August 26, 1958; on March 2, 1959, plaintiffs moved for leave to amend their complaint to join Mr. Bogue as defendant, alleging that the wrongful acts were incited by him. Bogue opposed this motion upon the ground that plaintiffs' amendment was made only for the purpose of delay, and he called for an immediate hearing on the motion. On March 12, 1959, the trial court denied Bogue's request for hearing, because proper notice of same had not been sent to plaintiffs' attorney, Mr. Janousek, in Washington, D. C. On July 21, 1959, defendant in No. 1157 moved for a continuance upon the grounds that, (a) the motion to join Bogue was still pending; (b) that No. 1157 depended upon the outcome of case No. 1122 (i. e., plaintiffs' title to the property was in dispute); and (c) that if Bogue were to be joined as defendant, he would require time to prepare his answer and defense. On July 31, 1959, defendant's motion for continuance was granted (plaintiffs not opposing it, but requesting that motions in Nos. 1156, 1157 and 1122 be heard at the same time, and that when all motions were settled, no further continuance be granted). On December 23, 1959, plaintiffs' motion to amend the complaint in No. 1157 was granted, and Bogue was joined as a defendant. On January 26, 1960, defendants Manus and Bogue filed their answers to the amended complaint.

With the cases in this position we turn to the events leading directly to the dismissal of plaintiffs' suits. It should be observed that somewhere during the course of the proceedings, Nos. 1156 and 1157 had been consolidated for the purposes of pre-trial hearings and further proceedings. Pursuant to an order made on March 8, 1960 (apparently the first day of the March term), a pre-trial hearing was had on that same day. It is admitted that plaintiffs had no prior notice of that hearing, but defendant contends that none was necessary within the meaning of Rule 11 of the Rules of the District Court for the District of South Dakota,¹ since the setting for pre-trial hearing was made at the time of the call of the calendar of the term at which the cases were set. The order relating to the proceedings at the March 8 pre-trial hearing recites the fixing of the hearing for 1:00 P.M. on March 8, and states that the defendant appeared and moved for substitution of Louis B. French as administrator of the estate of Willis W. French, deceased; that upon defendant's motion, leave was granted to withdraw the motion for dismissal in No. 1156 based upon...