Murray v. Roberts

• Decision Date: 04 February 1936
• Docket Number: 8204.
• Citation: 183 S.E. 688,117 W.Va. 44
• Parties: MURRAY v. ROBERTS.
• Court: West Virginia Supreme Court

183 S.E. 688

117 W.Va. 44

MURRAY v. ROBERTS.

No. 8204.

Supreme Court of Appeals of West Virginia.

February 4, 1936

Submitted January 14, 1936.

Syllabus by the Court.

A motion to reinstate a dismissed action under the terms of Code, 56-8-12, is addressed to the sound discretion of the trial court, and, in the absence of a showing of abuse of that discretion, the action of the trial court upon such motion will not be disturbed upon writ of error. Higgs v Cunningham, 71 W.Va. 674, 77 S.E. 273.

Error to Circuit Court, Wirt County.

Trespass on the case by Truda L. Murray against R. E. Roberts. The action was dismissed, and to review a judgment refusing to reinstate it on the docket, plaintiff brings error.

Affirmed.

A. J Barnhart, of Charleston, and John W. Mason, of Fairmont, for plaintiff in error.

Ambler McCluer & Ambler and Fred L. Davis, all of Parkersburg, for defendant in error.

KENNA Judge.

This writ of error is prosecuted to a judgment of the Circuit Court of Wirt County, entered September 10, 1934 refusing to reinstate upon the docket of that court a previously dismissed action of trespass on the case brought by Truda L. Murray against R. E. Roberts. The action was dismissed September 13, 1933, for failure of the plaintiff to prosecute and for failure to comply with an order of January 3, 1933, directing the plaintiff to file, within thirty days of that date, a bill of particulars which had been demanded, in writing, by the defendant. The chronology of the case, as is shown by the records of the circuit court of Wirt county, and by the affidavits filed upon plaintiff's motion to reinstate the action, is as follows:

August 8, 1932, the action was brought and summons issued returnable September Rules.

August 9, 1932, summons executed.

September Rules, 1932, declaration filed and common order entered at Rules.

October Rules, 1932, order entered at Rules confirming the common order and awarding a writ of inquiry.

January 3, 1933, an order was entered in open court making up the issues in the case, filing the motion in writing of the defendant for a bill of particulars, reciting the plaintiff's consent to the filing of a bill of particulars within thirty days from date, and continuing the cause generally to the next term.

June term, 1933, an order was entered permitting the withdrawal from the case of McDougle & Hoff, who were counsel of record for plaintiff in the bringing of the action.

There is some conflict in the showing as to what occurred at this time. The order entered simply states that the case was continued, upon motion of the plaintiff, until the next term of the court. The written opinion of the trial court states that the defendant again appeared and moved to dismiss the action because of the failure of the plaintiff to comply with the order entered at the January term; that no counsel appeared for the plaintiff, but that Mr. Eugene T. Hague stated that the withdrawal of McDougle & Hoff as counsel for the plaintiff had left Mr. George W. Johnson as sole counsel for the plaintiff and that he, at the request of Mr. Johnson, wished to move for a continuance because the duties of Mr. Johnson in Congress prevented him from being present. The court's opinion states that Mr. Hague explained at this time that he did not represent the plaintiff in the action, but appeared at the request of Mr. Johnson. The affidavit of Mr. Hague on the motion to reinstate the case does not deal with this circumstance, but states that he never accepted an employment in the case on behalf of the plaintiff. The affidavit of the plaintiff states that she employed Mr. Hague in the case in May, 1933.

At the September term, 1933, the defendant appeared and moved to dismiss the case for failure to file the bill of particulars. This motion was resisted, Mr. T. M. McIntyre, partner of Mr. Eugene T. Hague, speaking for the plaintiff. It does not appear what preparation in the way of summoning witnesses, etc., had been made by either the plaintiff or the defendant at the January, June, or September terms, 1933. It does appear, however, that at the June term, 1933, and again at the September term, 1933, no one appeared for the plaintiff ready to go to trial under the reasonable conditions imposed by the order entered January 3, 1933, and consented to by plaintiff's counsel. There was no showing made either at the June term, 1933, or at the September term, 1933, that would have entitled the plaintiff to a continuance of the case, and it does not appear that affidavits were filed or proof taken for that purpose. All that appears beyond the orders of the court, is shown by affidavits filed on plaintiff's motion to reinstate. The action was dismissed at the September term, 1933.

June term, 1934, plaintiff filed her motion in writing to reinstate the action upon the docket, and to rescind the order of dismissal entered at the September term, 1933. This motion the court took under advisement.

September 10, 1934, an order was entered overruling plaintiff's motion to reinstate her action, and it is from this order that this writ of error is presented.

Under the circumstances shown, we have no difficulty in reaching the conclusion that the trial court was justified, in the exercise of a sound discretion, in dismissing the plaintiff's case under the provisions of Code, 56-4-6, providing for dismissal at any time after the appearance of the defendant upon the plaintiff's failure to prosecute.

The remaining question is whether or not the court, in refusing to reinstate the action upon the docket, was clearly wrong.

From the affidavits filed on behalf of the plaintiff, it would appear that she originally employed Mr. George W. Johnson and the firm of McDougle & Hoff to bring and to prosecute her action. Mr. Johnson does not seem to have appeared in the case at any time. Affidavits filed show that McDougle & Hoff promptly notified plaintiff of the necessity of complying with the demand for a bill of particulars. Plaintiff says that she referred them to Mr. Johnson, but McDougle & Hoff after proper notification to the plaintiff, appeared to have withdrawn from the case, without having filed the bill of particulars. From this point on, there is considerable confusion in the statements of the affidavits as to just what occurred, but it would appear that some sort of misunderstanding developed between the plaintiff and some one or more of the various lawyers that had been consulted by her from time to time, with the result that no one of the lawyers felt that he was definitely employed in the case for the purpose of actually prosecuting it, but that some two or three different counsel, perhaps in the spirit of accommodation rather than in discharge of a duty, undertook...