Partridge v. St. Louis Joint Stock Land Bank

• Decision Date: 22 August 1942
• Docket Number: No. 12191.,12191.
• Citation: 130 F.2d 281
• Parties: PARTRIDGE v. ST. LOUIS JOINT STOCK LAND BANK et al.
• Court: U.S. Court of Appeals — Eighth Circuit

130 F.2d 281 (1942)

PARTRIDGE v. ST. LOUIS JOINT STOCK LAND BANK et al.

No. 12191.

Circuit Court of Appeals, Eighth Circuit.

July 24, 1942.

Rehearing Denied August 22, 1942.

George O. Durham, of St. Louis, Mo. (Staunton E. Boudreau and Barker, Durham & Drury, all of St. Louis, Mo., on the brief), for appellant.

Hugh H. Sullivan and Paul F. Plummer, both of St. Louis, Mo. (Frank H. Sullivan and Sullivan, Reeder, Finley & Gaines, all of St. Louis, Mo., on the brief), for appellees.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

The plaintiff in the court below prosecutes this appeal from dismissal of his action for failure to prosecute.

The suit was commenced on June 6, 1932, and had been pending in the court without being brought to trial for about nine years when the court dismissed it in May, 1941. On February 6, 1941, the court ordered it to be set down for trial May 12, 1941, and counsel were advised that it would be called for trial on that day. When the day came the court called the case for trial, pursuant to the order, but the plaintiff's counsel moved orally for continuance. Opposing counsel insisted upon trial. The oral motions, statements and arguments which were made by counsel on the hearing before the court were not recorded, but when they were concluded the judge made remarks from the bench which he directed the reporter then present to take down. He said that the court had repeatedly endeavored to get the case tried. That it had set the case on some two or three occasions on its own motion "and at the last setting of the docket (and, if I am not mistaken the same thing has happened before) counsel for plaintiff was not here, and they have made no effort to get this case ready for trial. So far as the court sees, there is no reason now why the case could not be tried. So far as the parties and pleadings and answers are concerned, there is no reason that appeals to the court. The case may be dismissed for failure to prosecute. The court probably necessarily must retain some jurisdiction to enter subsequent orders in the case and we do that if necessary. If I am not mistaken, there is a receiver in this case who has some funds in his hands. It may be necessary to make some subsequent order with reference to that matter. We retain such jurisdiction. Otherwise the case is dismissed and that is a final dismissal."

The court then prepared, signed and caused the clerk to record, as of that day, a formal judgment entry to carry into effect the statements from the bench. By the terms of the judgment the cause was ordered to be dismissed for failure to prosecute, "the court retaining jurisdiction to make any and all further orders necessary to direct distribution of the funds which are in the hands of the receiver." The judgment entry also contains recitation that the action was taken "on motion of certain defendants and on the court's own motion as to all defendants."¹

The court also filed its formal memorandum opinion to accompany the judgment entry, which opinion is included in the record and describes the case, the status of it when the dismissal was ordered and the reasons upon which the court concluded that "under the circumstances existing in the case it is not only within the discretion of the court to dismiss the case on motion of a party, but it is its duty to do so on its own motion."²

After the dismissal of the case the plaintiff filed a motion for rehearing which was submitted to and considered by the court on showings in support and in opposition and upon arguments of counsel. The motion was denied.

Appellant makes no claim that he was ready or offered to proceed with trial when his case was called pursuant to the order of setting which had afforded him something over two months to get ready and he had no written motion for continuance. He made no attempt to have the court certify as to the unreported oral motions, statements or arguments on the hearing of the matter of going forward with the trial, in narrative or other form. The formal opinion of the trial court records that the reason urged by the plaintiff for continuance was that plaintiff "might attack the answer filed by the defendants, executors of the Clarkson estate, or file a reply thereto."

As the record shows that Mr. Clarkson had been a defendant in his lifetime and had answered all of plaintiff's bills of complaint and that upon his death his said executors had been duly substituted as parties defendants in decedent's place and had appeared in the cause and had adopted decedent's answer as their own, it is apparent that plaintiff's asserted reason for continuance was not meritorious.

Appellant concedes that the District court has inherent jurisdiction to dismiss a cause pending before it on its own motion for want of prosecution and that it is a matter of judicial discretion frequently exercised, Hicks v. Bekins Moving & Storage Co., 8 Cir., 115 F.2d 406; Cage v. Cage, 5 Cir., 74 F.2d 377; Colorado Eastern Ry. Co. v. Union Pacific Ry. Co., 8 Cir., 94 F. 312, 313; Buck v. Felder, D.C., 208 F. 474; Walker v. Spencer, 10 Cir., 123 F.2d 347, and the foregoing epitome of the record of the hearing and proceedings had in this case pursuant to the order of setting for trial seems to present occasion for the exercise of such jurisdiction in most elemental form. The plaintiff's case, after pending nearly nine years, was set for trial upon reasonable and proper notice to plaintiff. He presented no protest or objection to the setting. On the date fixed he was not ready and presented an utterly unsubstantial reason for delay and continuance. On the presentation to the court of such a situation its power to order dismissal in the exercise of its discretion would seem too obvious to justify elaboration of reasons for affirmance.

But though plaintiff was not ready on the trial date and his reason urged upon and recorded by the court was unsubstantial, a very large record has been brought up on this appeal which demonstrates that a great amount of time and labor has been devoted to the case since its institution in 1932, especially by Mr. Staunton E. Boudreau, the only one of the numerous counsel for plaintiff who has continued to represent the plaintiff throughout the litigation, and it is very earnestly urged upon us that study of the whole record should convince that wrong and injustice has been done by the dismissal and that the court acted without power, arbitrarily and in abuse of such discretion as was vested in it by law.

Examination of the record shows that each of the statements made by the trial court in its opinion as to the repeated setting of the case for trial and as to other matters of record in the case is sustained by the record. The court's statement that the plaintiff had never displayed a desire to try the case on its merits is borne out by the record to the extent that it nowhere appears throughout the eight closely printed pages listing the docket entries in the case, that the plaintiff ever filed any request or motion to set the case down for a trial on its merits during the nine years of its pendency.

Appellant argued on his petition for rehearing, and repeats here, that his case was not at issue at the time of dismissal as to the defendants, the executors of the estate of W. Palmer Clarkson, deceased, but we find no error in the trial court's conclusion that plaintiff had had full opportunity to attack or reply to the answer which was filed by Mr. Clarkson in his lifetime and adopted by the executors upon entering their appearance in the case, and as no attack upon the answer appeared and no reply to it was filed or tendered, there was no lack of issue joined or excuse for failure to proceed on the ground relied on in respect to those defendants.

In the petition for rehearing it was alleged that plaintiff's case was not at issue as to one W. D. Gibbs. The record does not contain the particular bill of complaint in which Mr. Gibbs was first named a party defendant, but it is shown by affidavit that he was included in an amended bill of complaint filed April 3, 1933. The record shows that no process was ever taken out against him until May 6, 1941. In his application for issuance of that process plaintiff charged that Mr. Gibbs had been "brought into and has appeared in this cause" "by prior process, appearance and participation in the defense" "to such effect that the court had become vested with jurisdiction of his person." The "additional process" taken out eight years after Mr. Gibbs had been named a defendant was not served and plaintiff's lack of diligence in the prosecution of his case against this particular one of the numerous defendants is manifest. On the record here, W. D. Gibbs was either a defendant in default or one against whom the plaintiff had kept a suit on file for eight years without taking out or serving process upon him. Absent any excuse (and none is shown), the state of the case as to W. D. Gibbs merely lends support to the court's conclusion that plaintiff had failed to prosecute his action with diligence.

Much of appellant's argument here is directed to contentions that the dismissal was irregularly entered of record. It is contended that there were two judgments and that they were contradictory of each other and that there was no valid dismissal. It appears in the transcript of the record over the certificate of the clerk of the court that "the only order of dismissal of record in this cause of date May 12, 1941, appears in original transcript, page 207" and that judgment entry is duly certified to this court. It is as above described. On the hearing of the petition for rehearing plaintiff attempted to make it appear by affidavit that entries were made by the clerk in his "minute book" at the time the court made the remarks from the bench which we have quoted, and that there was a difference between the clerk's notations and "the...