Neel v. Barbra
| Decision Date | 29 May 1943 |
| Docket Number | No. 8296-8299.,8296-8299. |
| Citation | 78 US App. DC 13,136 F.2d 269 |
| Parties | NEEL, Insurance Commissioner of Pennsylvania, v. BARBRA. SAME v. DAVIS. SAME v. GUSTIN. SAME v. WARREN. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. James M. Earnest, of Washington, D. C., with whom Messrs. W. Gwynn Gardiner and Ralph P. Dunn, both of Washington, D. C., were on the brief, for appellant in each case.
Mr. Leroy A. Brill, of Washington, D. C., with whom Mr. Mark P. Friedlander, of Washington, D. C., was on the brief, for appellee in No. 8296.
Mr. Thomas X. Dunn, of Washington, D. C., for appellees in Nos. 8297-8-9.
Before GRONER, Chief Justice, and EDGERTON and ARNOLD, Associate Justices.
These are consolidated appeals from orders dismissing four suits for want of diligence in prosecution. The suits were brought by the Insurance Commissioner of the Commonwealth of Pennsylvania, acting as liquidator of the Keystone Indemnity Exchange, to collect assessments from subscribers and policyholders. Because the order of the Supreme Court of Pennsylvania which authorized these proceedings did not become final until March, 1940, it was necessary for the Commissioner to bring approximately 7,500 suits in a number of states between that date and September 12, 1941, in order to avoid the Statute of Limitations.
The alleged lack of diligence was based on the fact that these suits were brought in February, March and April, 1941, and no further action was taken in any of them for over a year after the suits were filed. Erroneous addresses prevented earlier service of process. Alias summonses were served from thirteen to fifteen months after the suits were filed.
In order to rebut the inference of lack of diligence created by this record the appellant offered evidence as to the steps taken by him as Insurance Commissioner to find the party defendants in various jurisdictions and to bring the cases to trial. Briefly, those steps were the securing of credit reports, the securing of information as to the location of the residences of these defendants, the commencement of the suits, and the trial of a test case necessary to clarify the right to sue in the District of Columbia. Had this evidence been received it might have established the fact that the Insurance Commissioner, under the circumstances, was proceeding with all the diligence possible for a competent administrative officer with efficient counsel.
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