Olsen v. Muskegon Piston Ring Co., 8404.

• Decision Date: 14 January 1941
• Docket Number: No. 8404.,8404.
• Citation: 117 F.2d 163
• Parties: OLSEN v. MUSKEGON PISTON RING CO.
• Court: U.S. Court of Appeals — Sixth Circuit

117 F.2d 163 (1941)

OLSEN v. MUSKEGON PISTON RING CO.

No. 8404.

Circuit Court of Appeals, Sixth Circuit.

January 14, 1941.

Dean S. Face, of Grand Rapids, Mich., and John G. Anderson, of Muskegon, Mich., for appellant.

Edward C. McCobb, of Grand Rapids, Mich. (McCobb & Heaney and Robert A. Johnson, all of Grand Rapids, Mich., on the brief), for appellee.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

This is an appeal from an order holding a prior adjudication a complete bar to the instant suit, and entering judgment on the pleadings for appellee, and from an order denying a motion to vacate the judgment.

The former suit was an action filed in the District Court for the Western District of Michigan, praying for issuance of stock by appellee to appellant and for an accounting. After the case was at issue, on May 26, 1936, the court notified counsel that the case would be set for hearing on June 23, 1936. Appellant's principal counsel, a Chicago attorney, on June 11, 1936, asked for a continuance, but was notified that appellee would oppose any delay. On or about June 19th appellant filed a motion for continuance until the fall term of court, upon the ground of an engagement in the trial of a case before a master in Chicago, to which objections were filed. The motion was denied June 20th. However, at the request of appellant's counsel, the court postponed the trial from June 23rd to June 29th. On June 25th the Chicago counsel notified the court that the trial of the case in Chicago, in which he had been engaged, was then completed, but that he was leaving for New York to be gone several days. On the date set for trial, namely, June 29th, appellant's other attorney attended court and moved to dismiss the action without prejudice. Appellee opposed this, upon the ground of prejudice to appellee. Evidence taken upon that subject showed that the appellee had present in court in Grand Rapids, Michigan, eight witnesses, one from Chicago, two from Sparta, Michigan, and one from Muskegon, Michigan; that one of the witnesses, a resident of Los Angeles, California, had made the trip from California to Michigan in order to testify, and had already been delayed from June 23rd to June 29th because of the week's continuance previously granted; that another witness was 72 years of age, and an affidavit of his personal physician was introduced, stating that this witness, on account of ill health and old age, might become so incapacitated as to be unable to testify. It was also shown that a representative of the Michigan Securities Commission was in Grand Rapids under subpoena; that certain material books of account had already been lost; that two of the directors familiar with the transactions set forth in the bill are dead, and that two material witnesses reside beyond the jurisdiction of the court and are not subject to subpoena. In addition, it was shown that the claim advanced by appellant, if successfully prosecuted, would reduce the book value of appellee's outstanding stock by approximately thirty per cent; that appellee was compelled to make extended explanation of the case in connection with the application to the Securities and Exchange Commission for listing of its stock on the national stock exchanges, and that the market value of the stock had been materially and adversely affected by the pendency of the case. $139,000 of appellee's funds were shown to be tied up in cash reserves to protect the stockholders against the possible adverse outcome of this suit at the time of the hearing.

The hearing was then postponed a day in order to secure the presence of the Chicago attorney. The court on June 30th called upon appellant to proceed upon the merits, but appellant introduced no testimony. The court then entered an order of dismissal, the material part of which is as follows:

"* * * testimony having been introduced in open Court on behalf of the defendant over the objection of the plaintiff relative to legal prejudice the defendant would sustain unless said dismissal be with full prejudice, thereupon consideration thereof, It Is Ordered, Adjudged and Decreed that the motion of the plaintiff to dismiss without prejudice upon payment of costs be denied, to which order and decree the plaintiff duly excepted, and

"Thereupon the Court called upon the plaintiff to proceed upon the merits and the plaintiff failing to respond, It Is Ordered, Adjudged and Decreed that the above entitled cause be dismissed with full prejudice to which order and decree the plaintiff then and there duly excepted."

The order was affirmed by this court (Olsen v. Sparta Foundry Co., 99 F.2d 1011), and a supplemental petition for rehearing was denied.

A bill of complaint was then filed on December 1, 1936, setting forth the identical cause of action...