Nealon v. Davis, No. 4453.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtMARTIN, Justice, and ROBB and VAN ORSDEL, Associate Justices
Citation18 F.2d 175
PartiesNEALON v. DAVIS.
Docket NumberNo. 4453.
Decision Date07 March 1927

18 F.2d 175 (1927)

NEALON
v.
DAVIS.

No. 4453.

Court of Appeals of District of Columbia.

Submitted January 4, 1927.

Decided March 7, 1927.


R. F. Downing and M. A. Easby-Smith, both of Washington, D. C., for appellant.

T. L. Jeffords and E. C. Dutton, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This is an appeal from an order of the lower court, setting aside a former order which vacated a previous dismissal of the case and restored it to the trial docket.

On February 20, 1917, the appellant as plaintiff filed a declaration in the lower court, claiming damages from the appellee as defendant because of alleged personal injuries. On March 16, 1917, within rule, the defendant pleaded the general issue. No further action was taken in the case until June 28, 1919, when it was entered as dismissed without prejudice by the clerk under a rule of court adopted June 16, 1919, reading as follows;

"It is ordered, this 16th day of June, 1919, that when any party to a cause other than criminal or bankruptcy is in default for failure to join issue, or plead or to notice for trial a cause in which an issue of law or of fact has been raised and such default has continued for one year, that the clerk of this court enter in the docket the words `Dismissed W. P.,' together with the date of such entry, meaning dismissed without prejudice and without costs to either party, provided however that on application of either party and for cause shown such cause so dismissed may be revived and its prosecution resumed, and for the purpose of such revival the term of court at which such entry is made is extended for a period of six months thereafter."

On February 25, 1920, after the adjournment of the term of court at which the case was dismissed, and about eight months after the entry of dismissal, the plaintiff filed a motion praying the court to set aside and vacate the dismissal and to allow plaintiff to join issue. On March 12, 1920, the court granted plaintiff's motion, set aside and vacated the dismissal of the cause, and restored it to the trial calendar.

Various interlocutory proceedings followed, until on November 11, 1925, the court reconsidered the order vacating the dismissal, and held that it was void, for the reason that at the time when the motion for revival was filed the court had lost jurisdiction of the case because of the expiration of the six months...

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3 practice notes
  • In re Verizon Internet Services, Inc., No. CIV.A. 03-MS-0040 JDB.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 24, 2003
    ...discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law."); Nealon v. Davis, 18 F.2d 175, 176 (D.C.Cir.1927) ("A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the ......
  • In re Verizon Internet Services, Inc., Civil Action No. 03-MS-0040 (JDB) (D. D.C. 4/24/2003), Civil Action No. 03-MS-0040 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 24, 2003
    ...discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law."); Nealon v. Davis, 18 F.2d 175, 176 (D.C. Cir. 1927) ("A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to th......
  • Krause v. MISSISSIPPI COAL CORPORATION, No. 6314-6322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 16, 1937
    ...See, also, Cage v. Cage et al., 5 Cir., 74 F.2d 377; Dillon v. United States, 9 Cir., 29 F.2d 246; Nealon v. Davis, 57 App.D.C. 133, 18 F.2d 175; Carnegie Steel Co. v. Colorado Fuel & Iron Co., 8 Cir., 14 F.2d 1. The third assignment of error challenges the form of the decree in that appell......
3 cases
  • In re Verizon Internet Services, Inc., No. CIV.A. 03-MS-0040 JDB.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 24, 2003
    ...discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law."); Nealon v. Davis, 18 F.2d 175, 176 (D.C.Cir.1927) ("A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the ......
  • In re Verizon Internet Services, Inc., Civil Action No. 03-MS-0040 (JDB) (D. D.C. 4/24/2003), Civil Action No. 03-MS-0040 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 24, 2003
    ...discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law."); Nealon v. Davis, 18 F.2d 175, 176 (D.C. Cir. 1927) ("A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to th......
  • Krause v. MISSISSIPPI COAL CORPORATION, No. 6314-6322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 16, 1937
    ...See, also, Cage v. Cage et al., 5 Cir., 74 F.2d 377; Dillon v. United States, 9 Cir., 29 F.2d 246; Nealon v. Davis, 57 App.D.C. 133, 18 F.2d 175; Carnegie Steel Co. v. Colorado Fuel & Iron Co., 8 Cir., 14 F.2d 1. The third assignment of error challenges the form of the decree in that appell......

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