McCubbens v. O'Banion

• Decision Date: 04 April 1977
• Docket Number: No. 3--675A113,3--675A113
• Citation: 361 N.E.2d 191,172 Ind.App. 576
• Parties: Thomas K. McCUBBENS and James L. Kemp, Defendants-Appellants, v. Betty O'BANION, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 191

361 N.E.2d 191

172 Ind.App. 576

Thomas K. McCUBBENS and James L. Kemp, Defendants-Appellants, v. Betty O'BANION, Plaintiff-Appellee.

No. 3--675A113.

Court of Appeals of Indiana, Third District.

April 4, 1977.

Milton A. Johnson, Edward V. Minczeski, South Bend, for defendants-appellants.

Morris Rosen, David T. Ready, South Bend, for plaintiff-appellee.

HOFFMAN, Judge.

Thomas K. McCubbens and James L. Kemp appeal from the trial court's entry denying their motion for summary judgment on a claim for personal injuries and property damage. The question they raise on appeal concerns whether the dismissal of a similar prior claim for want of prosecution pursuant to former Supreme Court Rule 1--4C ¹ acts as a bar to the cause of action herein.

The original complaint filed October 18, 1968, alleged that the then fourteen-year-old Betty Belton was injured when two automobiles driven by appellants collided and as a result thereof jumped the curb and struck her while walking on the sidewalk. On October 24, 1969, the complaint was dismissed for want of prosecution pursuant to former Rule 1--4C supra. By stipulation of the parties the cause was reinstated on June 11, 1970, under an amended complaint. Further proceedings were had which terminated in the court's finding that by its previous order of dismissal it had lost jurisdiction, that it was without power to reinstate the cause under an amended complaint and that the prior dismissal was an adjudication on the merits. Belton thereafter failed to perfect her appeal.

The present case was begun on March 14, 1974, when at age twenty-one, the now Betty (Belton) O'Banion filed a second complaint alleging the appellants' negligence in the same manner as had been claimed in the prior action. In response McCubbens and Kemp filed their separate motions for summary judgment based on the premise that the original cause had been dismissed for want of prosecution. On May 17, 1974, the trial court granted these motions. On March 14, 1975, after a special judge had been appointed, O'Banion's motion to correct errors was sustained. The trial court vacated its prior summary judgment and ordered appellants to file responsive pleadings. From this judgment McCubbens and Kemp appeal.

Appellants urge that the dismissal of O'Banion's original complaint for want of prosecution pursuant to Rule 1--4C, supra, was with prejudice and thus a bar to the filing of a second complaint on the same cause of action. Appellee assumes however, that the dismissal was without prejudice and therefore not res judicata to the case at bar.

Drawn into question therefore is whether a dismissal for want of prosecution pursuant to Rule 1--4C, supra, is considered as an adjudication upon the merits in the context of assessing a subsequent complaint on the same cause.

Indiana Supreme Court Rule 1--4C, supra, states:

'Rule 1--4C. Failure to Prosecute Civil Actions. 1. Whenever no action has been taken in a civil cause for a period of six consecutive months, the court, on motion of a party, or on its own motion, may issue a rule against the plaintiff to show cause by a day certain, if any there be, why said cause should not be dismissed for want of prosecution.

'2. Said rule to show cause shall be entered of record and notice thereof may be served on each of the parties or their attorneys personally or by first class United States mail.

'3. If the plaintiff shall not show sufficient cause, verbally or in writing, within the time limited, why said cause should not be so dismissed, the court may dismiss the same at plaintiff's costs and shall notify plaintiff or his attorney of record thereof personally or by first class United States mail.

'4. Within 60 days thereafter, plaintiff may file therein a verified petition to reinstate said cause alleging facts showing that either lack of notice, inadvertence or excusable neglect prevented plaintiff from showing cause why the same should not be dismissed and facts showing that plaintiff has a good cause of action. Notice, and a copy thereof, shall be served on the defendant or his counsel personally or by first class United States mail of the time of hearing thereof and defendant shall have the right to file counter-affidavits thereto. If the court finds that said lack of notice, inadvertence or excusable mistake prevented plaintiff from showing cause why said action should not be dismissed and finds that plaintiff has shown a prima facie cause of action, said action shall be reinstated. The court may condition such reinstatement upon the performance by plaintiff of such action as shall assure the diligent prosecution thereof. Effective July 1, 1965.

'(This rule will supersede Burns' § 2--901(6) (1964 Supp.))'

Under paragraph three of the rule the court may dismiss a cause of action for want of prosecution without the assent of the plaintiff. In addition, the method described under paragraph four for reinstatement requires that the plaintiff show within sixty days that through either a lack of notice, inadvertence or excusable neglect he failed to move his case forward. Thus, if a party has failed to prosecute his case but shows cause therefor under paragraph four he may be reinstated upon conditions involving requirements of future diligence. Any further failure to abide by court ordered conditions of diligence would require additional sanction.

From this scheme it is apparent that a failure to abide by court rule cannot be avoided by the expedient of filing a new...