Salmon v. City of Stuart

• Decision Date: 10 April 1952
• Docket Number: No. 13644.,13644.
• Citation: 194 F.2d 1004
• Parties: SALMON et al. v. CITY OF STUART, FLA., et al.
• Court: U.S. Court of Appeals — Fifth Circuit

194 F.2d 1004 (1952)

SALMON et al. v. CITY OF STUART, FLA., et al.

No. 13644.

United States Court of Appeals Fifth Circuit.

March 22, 1952.

Rehearing Denied April 10, 1952.

Carroll Dunscombe, Stuart, Fla., for appellants.

T. T. Oughterson, Stuart, Fla., for appellees.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

PER CURIAM.

The appeal is from an order, dated October 11, 1950, dismissing the cause, under Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C.A. for want of prosecution, and an order dated February 26, 1951, denying her petition to vacate the order and reinstate the cause.

Confronted by a motion to dismiss the appeal because not timely taken, in that the order of dismissal was entered on October 11, 1950, and the notice of appeal was filed March 15, 1951, more than 150 days afterward, while the order denying the motion to vacate was not appealable, Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406,¹ appellants meet it with the claim that the running of the time for appeal from the order of Oct. 11th, which was appealable, was tolled by the filing of the petition to vacate the order of dismissal and reinstate the action. We agree with appellant that the appeal was timely taken from the order of October 11th, because the consideration and determination by the judge of the petition to vacate it operated to extend the time for appeal therefrom. Crommelin v. Markwalter, 5 Cir., 181 F.2d 948, at page 949.

When it comes to the merits, though, we think it plain that the order should be affirmed. Putting to one side that what is being litigated here is old straw which has been thrice threshed, or sought to be threshed, in the courts, it stands undisputed that, following the filing of this, the third suit, no action was taken in it by the plaintiffs for one year and three months.

Matters standing thus, the court was fully authorized to dismiss the action.² The order of dismissal is

Affirmed.

1 French v. Jeffries, 7 Cir., 161 F.2d 97; U. S. v. Muschany, 8 Cir., 156 F.2d 196; Crommelin v. Markwalter, 5 Cir., 181 F.2d 948.

2 Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406; Partridge v. St. Louis Joint Stock Land Bank, 8 Cir., 130 F.2d 281; Moore's Federal Practice, 1st Ed., p. 3043; Zielinski v. U. S., 2 Cir., 120 F.2d 792; Shotkin v. Western, 10 Cir., 169 F.2d 825.