Nelson v. Devney

• Decision Date: 03 March 1939
• Docket Number: No. 6573.,6573.
• Citation: 102 F.2d 487
• Parties: NELSON v. DEVNEY et al.
• Court: U.S. Court of Appeals — Seventh Circuit

102 F.2d 487 (1939)

NELSON v. DEVNEY et al.

No. 6573.

Circuit Court of Appeals, Seventh Circuit.

March 3, 1939.

W. T. Doar, W. P. Knowles, III, both of New Richmond, Wis., for appellant.

Alexander Wiley and Marshall A. Wiley, both of Chippewa Falls, Wis., for appellees.

Before SPARKS and TREANOR, Circuit Judges, and WHAM, District Judge.

SPARKS, Circuit Judge.

This action sought to recover damages in the sum of $26,500 alleged to have resulted from the negligence of the defendants with respect to a collision of appellant's automobile with a truck and trailer which was owned by appellees, the Devneys, and was driven by the appellee, Miles. The Builders and Manufacturers Mutual Casualty Company was joined as a party defendant by reason of a liability insurance policy which it had issued, covering the truck and trailer to the extent of $10,000 for injuries to one person. The jury returned a verdict for the defendants, a judgment was accordingly entered, and from it, together with certain orders made by the court after the judgment, this appeal is prosecuted. In order to get a clear understanding of the questions presented, it is necessary to state the facts chronologically.

The collision occurred about two o'clock in the morning of March 15, 1935. Miles, with a load of horses in the truck and trailer, was driving westwardly with defendant, William Devney, on Wisconsin state highway number 29, which is a twenty-foot paved highway. About five miles east of Thorp, the left rear wheel of the trailer was lost, which resulted in lowering that side of the trailer several inches until the weight of the load rested on the brake drum which was twenty-two inches in diameter. William Devney walked into Thorp leading four of the horses. Miles followed with the truck and trailer at a speed of ten to fifteen miles an hour. For a distance of sixty or seventy miles immediately east of the collision there had been intermittent fogs. At the time of the collision Miles was driving on a straight level stretch and had entered a fog belt where his vision was reduced to fifteen or twenty feet. As he was thus driving he saw in the rear-view mirror the headlights on appellant's car as he was approaching. Miles thereupon drove his truck and trailer partly on the north shoulder of the highway so that the truck and trailer were four feet north of the black center line, and moving at about ten miles an hour. Appellant's car crashed directly into the rear end of the trailer and jammed under it.

Appellant was driving his own car and was pinned back of its steering wheel. Passing motorists took appellant and his companion, Meagher, to Thorp. Appellant's car was loosened from the trailer with the help of a wrecker and towed into Thorp. The truck and trailer drove into that town under their own power. A red tail light four inches in diameter, embedded in the crossbeam of the rear of the trailer, was still burning after the collision. Appellant's car had impacted the trailer almost in the center so that the front wheels of appellant's car were in line with the respective rear wheels of the trailer.

Appellant, a resident of Minnesota, instituted this action on December 28, 1935, in the Federal court for the Western District of Wisconsin, where all the individual defendants were residents, and summonses were served on January 3, 1936. On February 9, 1936, appellant's guest companion, Meagher, instituted an action in the Wisconsin State Circuit Court for Eau Claire County, against the present defendants and appellant and his insurance carrier. That action terminated adversely to Meagher. On February 13, 1936, the appellees answered the present complaint. On April 27, 1936, while William Devney was in Minneapolis on business, a summons and complaint involving the same collision were served on him. The plaintiff and defendants in that case were the same as those in the instant case, and up to the time of this judgment there was no service of process upon any of the defendants in the Minnesota case other than William Devney. The instant case, under the rules of the District Court, was due to be tried in the December term 1936, and appellees had prepared their case for trial, and had no notice from anyone that the case would not then be tried, until the thirtieth day of November, 1936, when appellees' attorney was notified by the clerk of the District Court that he had received a letter under date of November 21, 1936, from appellant's counsel as follows: "Will you kindly dismiss the above entitled cause without prejudice and without further notice to either party. Upon the call of the calendar you may advise the Court that the action may be dismissed without prejudice because we intend to prosecute the action within the state of Minnesota."

On December 8, 1936, appellant's same counsel filed in the District Court the following: "Comes now the plaintiff above named, Guy Nelson, by and through his attorneys, and dismisses the above entitled action without prejudice and without costs to either party. Dated this 5th day of December, 1936." This was signed by appellant's counsel and upon it there appears the following endorsement: "Motion to dismiss was denied. Patrick T. Stone, District Judge." On February 8, 1937, there appears in the record an unserved notice that on that day or as soon thereafter as counsel could be heard, the plaintiff would move for a dismissal without prejudice. On February 10, 1937, the District Court heard the motion and ordered: "That the motion of the plaintiff for dismissal be denied with Ten Dollars ($10.) costs." Thereupon the court set the case for trial on February 18, 1937.

On that date the case was called for trial and appellant moved for a continuance, supported by a physician's certificate. Appellees objected to the motion and filed a counter affidavit. The motion was denied and a jury was empaneled and sworn. Appellant refused to introduce any evidence and appellees called their witnesses and presented their case. The court directed a verdict for the appellees and entered a judgment for them dismissing the suit on the merits, with judgment for costs in the sum of $163.56. In addition to this general verdict the jury returned a special verdict in the form of answers to interrogatories.¹

On April 19, 1937, appellant moved for the following orders: (1) To set aside the judgment entered February 18, 1937; (2) to grant him leave to file a motion for a new trial; (3) if one and two were granted, then to set aside the verdict and grant a new trial; (4) if one, two and three were denied then to set aside the verdict and judgment and to relieve him of his default in his appearance at the trial.

On August 24, 1937, the court granted appellant's motion for a new trial in the following language:

"* * * That while the plaintiff utterly failed to comply with the statutory provisions on the motion for continuance, nevertheless, in the interests of justice, plaintiff's motion for a new trial is hereby granted, on condition, however, that within ten days after the entry of this order the plaintiff shall pay to the defendants the costs and disbursements heretofore taxed in said judgment, and in addition thereto the sum of $75.00 as attorneys' fees, and on the further condition that this action shall be tried at the next jury term of this Court to be held at Superior, Wisconsin, commencing on September 13, 1937."

On August 30, 1937, the appellant moved the court to permit him to dismiss his action without prejudice and with costs; and that in case he were denied such permission, an order be made striking out the conditions imposed upon him by the order of August 24, 1937.

On September 14, 1937, the court ruled on this motion, and in its order it set forth the history of the case including the dates of the various rulings which we have hereinbefore referred to. The court then stated that inasmuch as it had denied appellant's prior motion to dismiss his action, and no exception was taken to that ruling, "the Court now refuses to allow the plaintiff to file his third motion to dismiss the complaint without prejudice." The court, however, permitted appellant to file that part of his motion which sought to strike out the conditions imposed upon him by the order of August 24, and after hearing arguments of counsel made the following order: "Therefore, It Is Ordered, that the plaintiff's motion for an order striking out the conditions of the order of the Court dated the 24th day of August, 1937, be and the same is hereby denied. To all of which the plaintiff may have an exception."

We are first met with appellees' motion to dismiss the appeal because application was not made therefor within three months from the entry of the judgment in accordance with the provision of 28 U.S. C.A. § 230. Rule 25 of the Rules of Practice of the Federal Court, as adopted by the Western District of Wisconsin, provides that judgments or decrees shall not be deemed to take final effect for the purpose of appeal so long as a motion in arrest of judgment or for a new trial, or a motion or petition for rehearing is pending; provided, that such motion or petition must be brought to hearing without unreasonable delay. The point raised by appellees is that appellant's motion of August 30, 1937, to dismiss his action, and for the court to strike out the conditions imposed upon him by the order of August 24, did not come within this rule because it was neither a motion for a new trial nor a petition for rehearing. Technically this position is correct. However, if the conditions were stricken, the result would be the granting of a new trial without condition, and this would have extended to him more relief in that respect than he had theretofore been granted. To this extent we think the motion must be considered in effect as one for a new trial. We arrive at this conclusion more willingly because of the drastic rules in Wisconsin with respect to the...