Nealon v. Davis

• Decision Date: 07 March 1927
• Docket Number: No. 4453.,4453.
• Parties: NEALON v. DAVIS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

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 extension following the entry of dismissal. The order of March 12, 1920, was therefore vacated, and the case stood dismissed as theretofore. The plaintiff then appealed from that ruling.

In our opinion the decision appealed from was right. The rule of court under which the cause was first dismissed was not unreasonable, for it permitted the interested parties at any time within six months after a dismissal to apply for a revival of the case, and it extended the term of court for six months for that purpose. It is true that the rule as then in force did not require that notice of the dismissal should be given to the parties, but it was not unreasonable for the court to require a party litigant to keep himself informed of the status of his case without special notice, at least once in every six months. Rules of this character are necessary to prevent unreasonable and prejudicial delay in the disposition of pending cases.

We think, furthermore, that the duty performed by the clerk when entering a dismissal under the rule was not judicial, but ministerial. "A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to...