Litten v. Peer, No. 13171

CourtSupreme Court of West Virginia
Writing for the CourtSPROUSE
Citation156 W.Va. 791,197 S.E.2d 322
PartiesOscar Madison LITTEN, Jr. v. Robert Odel PEER and Glenna Marlene Adam.
Decision Date26 June 1973
Docket NumberNo. 13171

Page 322

197 S.E.2d 322
156 W.Va. 791
Oscar Madison LITTEN, Jr.
v.
Robert Odel PEER and Glenna Marlene Adam.
No. 13171.
Supreme Court of Appeals of West Virginia.
Submitted May 15, 1973.
Decided June 26, 1973.

Page 323

Syllabus by the Court

1. An order of a United States District Court entered in a civil action under Rule 41(b) of the Federal Rules of Civil Procedure dismissing the action with prejudice for failure of the plaintiff to prosecute his claim is an adjudication on the merits and bars a subsequent civil action instituted on the same claim in a state court.

2. While the effect of the provisions of Code, 1931, 55--2--18, is to extend the statute of limitations for a period of one year from the date of an involuntary dismissal, the statute does not abrogate the doctrine of res judicata. Thus where the party incurs an involuntary dismissal which is an adjudication on the merits, operating as res judicata, the effect of Code, 1931, 55--2--18, is nullified.

Edwin C. Runner, Kingwood, for appellants.

Richard W. Cardot, Elkins, George I. Sponaugle, Franklin, for appellee.

SPROUSE, Judge:

This case is before the Court upon a writ of error and supersedeas to the final judgment of the Circuit Court of Pendleton County, by which judgment the circuit court [156 W.Va. 792] set aside a jury verdict and granted the plaintiff a new trial in an action instituted by Oscar Madison Litten, Jr., as the plaintiff, against Robert Odel Peer and Glenna Marlene Adam, as the defendants.

The two questions urged for consideration are whether the action in the circuit court was barred either by the statute of limitations or by the doctrine of res judicata or by both defenses.

Page 324

The plaintiff Litten, and the defendants, Peer and Adam, were involved in an automobile collision in Harrisonburg, Virginia on March 12, 1968. The facts of the accident are not germane to the problems presented here.

The plaintiff on June 16, 1969, first instituted an action in the United States District Court for the Northern District of West Virginia to recover damages for personal injuries resulting from the collision. The defendants filed an answer and counterclaim, and the case was matured for trial. On the day assigned for the trial of the action in the United States District Court, the defendants appeared in person and by counsel, but the plaintiff failed to appear in person. He was represented before the court by associate counsel in the case. The associated counsel for the plaintiff reported to the court that he had been informed by chief counsel that the plaintiff was ill and could not attend the trial. Diligent effort to contact the plaintiff and the chief counsel was unavailing.

As a consequence, on that day, February 9, 1970, the court entered an order pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The order dismissed the action for want of prosecution subject to the right of the plaintiff to file a written petition showing cause why such order should not become final.

A second order, designated a 'Memorandum Order', was entered by the United States District Court on September 30, 1970, which is in part as follows:

'* * * The Court having dismissed the action by order dated February 9, 1970, allowed Plaintiff [156 W.Va. 793] thirty (30) days to move for a hearing under Rule 60(b), Federal Rules of Civil Procedure, and to show cause why the dismissal should not become final.

'After careful consideration of the arguments of counsel, the Court concludes that Plaintiff has failed to explain satisfactorily the absence of Plaintiff, Plaintiff's chief counsel, Plaintiff's associate counsel, and Plaintiff's witnesses on the day assigned for trial of the above styled civil action.

'Accordingly, it is ADJUDGED and ORDERED that the defendants prevail in their motion to strike the complaint under Rule 41(b) of the Federal Rules of Civil Procedure and that the same be dismissed with prejudice.

'Defendants having twice advised the Court that they would dismiss their counterclaim if successful on the motion here considered, it is accordingly ADJUDGED and ORDERED that the counterclaim of said defendants be dismissed with prejudice. * * *.'

The court on October 27, 1970, entered a third order reciting that the plaintiff's motion to vacate the order of September 30, 1970, had been considered and, upon the entire record, the court found no additional matters which would suggest or compel the court to amend or modify its earlier conclusion. The plaintiff's motion was overruled.

A fourth order, not further explained in the record before us, was entered by the United States District Court on November 17, 1970. It recites:

'The term 'dismissed with prejudice' as employed in this Court's memorandum order of September 30, 1970, and this Court's order of October 27, 1970, is limited to the continuation, maintenance, reinstitution or reactivation of the above styled civil action and the cause of action between the parties hereto in this Court.'

As has been indicated, the plaintiff's complaint was filed in the United States District Court on June 16, 1969, [156 W.Va. 794] within the time limitations required by the Code of West Virginia, 1931, 55--2--12, as amended.

Following the dismissal with prejudice in the United States District Court under Rule 41(b) of the Federal Rules of Civil

Page 325

Procedure, the plaintiff instituted his action against the defendants in the Circuit Court of Pendleton County on December 5, 1970. This was not within the two years as required by Code, 1931, 55--2--12, as amended. However, Code, 1931, 55--2--18, extends that time limitation for an additional year in certain circumstances. If this case falls under the provisions of that section, the complaint would have been timely filed in our state court.

The defendants filed a timely motion to dismiss the action, alleging that it was barred by the statute of limitations (Code, 1931, 55--2--12, as amended). By an amended motion, they assigned the additional ground that the action was barred by the doctrine of res judicata. The defendants alleged that the action of the United States District Court in dismissing the action with prejudice was an adjudication on the merits and a bar to any subsequent suit on the same claim. The circuit court, by an order entered on May 10, 1971, overruled the defendants' amended motion to dismiss and denied the defendants' motion to certify the ruling to this Court.

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16 practice notes
  • Rowe v. Grapevine Corp., No. 26353.
    • United States
    • Supreme Court of West Virginia
    • 15 Diciembre 1999
    ...effect of a federal judgment" and citing Brooks v. Arlington Hosp. Ass'n, 850 F.2d 191, 195 (4th Cir.1988)); Litten v. Peer, 156 W.Va. 791, 796-97, 197 S.E.2d 322, 326 (1973) (applying federal law to determine res judicata effect of federal court decision). Since Defendants concede, ho......
  • Smith v. Cross, No. 34147.
    • United States
    • Supreme Court of West Virginia
    • 31 Marzo 2009
    ...148 W.Va. 380, 135 S.E.2d 236 (1964)." Syllabus Point 3, Dawson v. Woodson, 180 W.Va. 307, 376 S.E.2d 321 (1988). In Litten v. Peer, 156 W.Va. 791, 797, 197 S.E.2d 322, 328 (1973), we held that "[i]t has always been the policy of this Court to protect each litigant's day in court.......
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • 1 Abril 2010
    ...and are mindful that "[i]t has always been the policy of this Court to protect each litigant's day in court." Litten v. Peer, 156 W.Va. 791, 797, 197 S.E.2d 322, 328 (1973). The underlying argument proffered by Mr. Dailey is a matter of procedure that concerns a lack of proper not......
  • Jordache Enterprises v. NAT. UNION FIRE INS., No. 24672.
    • United States
    • Supreme Court of West Virginia
    • 24 Noviembre 1998
    ...proceeded to determine the res judicata effect of a Pennsylvania judgment by using this State's law on res judicata. In Litten v. Peer, 156 W.Va. 791, 197 S.E.2d 322 (1973), on the other hand, an action filed in federal district court was dismissed against the plaintiff for want of prosecut......
  • Request a trial to view additional results
16 cases
  • Rowe v. Grapevine Corp., No. 26353.
    • United States
    • Supreme Court of West Virginia
    • 15 Diciembre 1999
    ...effect of a federal judgment" and citing Brooks v. Arlington Hosp. Ass'n, 850 F.2d 191, 195 (4th Cir.1988)); Litten v. Peer, 156 W.Va. 791, 796-97, 197 S.E.2d 322, 326 (1973) (applying federal law to determine res judicata effect of federal court decision). Since Defendants concede, ho......
  • Smith v. Cross, No. 34147.
    • United States
    • Supreme Court of West Virginia
    • 31 Marzo 2009
    ...148 W.Va. 380, 135 S.E.2d 236 (1964)." Syllabus Point 3, Dawson v. Woodson, 180 W.Va. 307, 376 S.E.2d 321 (1988). In Litten v. Peer, 156 W.Va. 791, 797, 197 S.E.2d 322, 328 (1973), we held that "[i]t has always been the policy of this Court to protect each litigant's day in court.......
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • 1 Abril 2010
    ...and are mindful that "[i]t has always been the policy of this Court to protect each litigant's day in court." Litten v. Peer, 156 W.Va. 791, 797, 197 S.E.2d 322, 328 (1973). The underlying argument proffered by Mr. Dailey is a matter of procedure that concerns a lack of proper not......
  • Jordache Enterprises v. NAT. UNION FIRE INS., No. 24672.
    • United States
    • Supreme Court of West Virginia
    • 24 Noviembre 1998
    ...proceeded to determine the res judicata effect of a Pennsylvania judgment by using this State's law on res judicata. In Litten v. Peer, 156 W.Va. 791, 197 S.E.2d 322 (1973), on the other hand, an action filed in federal district court was dismissed against the plaintiff for want of prosecut......
  • Request a trial to view additional results

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