Swain v. City of Princeton
|11 June 1970
|No. 2,No. 1168A197,1168A197,2
|259 N.E.2d 440,147 Ind.App. 174
|Roy M. SWAIN, Sue Cline, Appellants, v. CITY OF PRINCETON, William A. White, d/b/a White Construction Co., Appellees
|Indiana Appellate Court
Ramsey & Ramsey, by Joe D. Black, Vincennes, for appellants.
McDonald & McDonald, Princeton, for appellees.
This is one appeal from three identical but separate judgments of dismissal for want of prosecution in three cases. Appellant Swain was sole plaintiff in two cases and appellant Cline was sole plaintiff in the third. Both appellees were defendants (and the only defendants) in all three actions for alleged property damage arising out of the same incident. During the time the defendants-appellees' motions to dismiss for want of prosecution were pending, plaintiffs-appellants filed motions to withdraw submission and to appoint a special judge, asserting that more than ninety days had elapsed since the motions to dismiss had been argued and submitted. The judgments of dismissal were entered eight days after the filing of the motion to withdraw submission. As a part of the same entry in each case, the regular judge overruled the motion to withdraw submission.
In plaintiff-appellant Swain's two cases (Nos. 4221 and 4222 in the Pike Circuit Court) entries were made long prior to the dismissal in which '(t)he court now sustains defendants (sic) motion to consolidate this cause of action with cause No. 4221 (or with cause No. 4222) for the purpose of trial * * *.' Since these cases were never tried they were never actually consolidated. They were always treated (in the court below) as two separate cases and are here in two separate transcripts to which separate, but apparently identical, assignments of error are attached. Plaintiff-appellant Cline's case is here via a third transcript and a slightly different assignment of errors under Appellate Court Cause No. 1168 A 197. On petition of the appellants we ordered that all three causes be consolidated in this court under Cause No. 1168 A 197, entitled Roy M. Swain, Sue Cline, Appellants, v. City of Princeton, William A. White, d/b/a White Construction Company, Appellees.
We are faced at the outset with the motion of defendants-appellees to dismiss or affirm, 1 which motion has heretofore been held in abeyance pending final disposition. The motion enumerates eighteen apparent failures to comply with the rules of the Supreme Court. No. 17, the alleged failure to make a good faith effort to comply with Rule 2--17, contains six subspecifications. At this time we are inclined to believe that the motion should have been sustained and the appellees thereby relieved of the burden of briefing the case on the merits. However, since it has now been fully briefed, we believe we can more satisfactorily dispose of it with an opinion on the merits. Accordingly, appellees' motion to dismiss or affirm is overruled. Appellants' motions to amend their assignments of errors are sustained and the assignments are deemed amended. And, for the reasons hereinafter stated, the three judgments of the trial court are affirmed.
At the time the defendants filed their motions in the trial court for orders against the appellants (plaintiffs) to show cause why the actions should not be dismissed for want of prosecution pursuant to Supreme Court Rule 1--4C, 2 the plaintiffs were without attorneys and two of the cases had been pending over forty-five months and the third over sixty-five months. Except for the appearance and withdrawal of counsel, there had been no activity in one case for twenty months and no activity in the other two for thirty months.
Upon the filing of these motions, the trial court issued orders to the plaintiffs 'to show cause why their action should not be dismissed on or before April 18th, 1968, under penalty of said cause being dismissed.' The sheriff served certified copies of these orders on the plaintiffs by reading the same to them on March 28, 1968. On April 17, 1968, one day prior to the show cause date, plaintiffs' present counsel entered appearances in the three cases. No further action is shown of record until April 28, 1968, when an entry identical to the following was made in each of the three cases:
'Comes now Ramsey & Ramsey by Joe D. Black and shows to the Court that the motion to dismiss has agreed to be argued at a later date and now requests the Court to rule the defendant to answer herein.
'Comes now Ramsey & Ramsey and file reasons for lack of prosecution of above case.'
The 'reasons' for want (or lack) of prosecution filed in each of the cases were in identical words, (except that in plaintiff Cline's case the personal pronoun was changed to the feminine gender), as follows:
'1. Plaintiff has, as is apparent from the record, exerted a substantial effort in order to have these cases prosecuted dilegently (sic). The very fact that so many attorneys have entered appearances in these causes should testify to the fact that these cases represent something more than harrassment (sic) as contended by the Defendants.
'2. The Plaintiff is neither a lawyer nor is he especially learned layman in legal matters. This case should not be dismissed because of the inactivity of his attorneys when he has solicited them to take action. Plaintiff has encouraged his attorneys who represented him to get this matters brought to a trial at the earliest possible date. This firm does not know the reason they have not done so.
'3. One reason for the delay apparently is the fact that a companion case that was venued to Knox County and was appealed consummed (sic) a substantial period of time. It appears that the attorneys for the Plaintiff were waiting to see the outcome of that case before pursuing these cases. That appeal was never heard on its merits, but was dismissed because of an improper filing date.
'4. It should be noted that Defendants have contributed greatly in the delay in having this case tried by their numerous dilitory (sic) motions. They have been especially dilitory (sic) in answering any of the statements in the Plaintiff's complaints.
These 'reasons' were not verified and were signed only by counsel. They contain, it will be noted, no categorical denial of want of due diligence and in particular, no denial of the dismissal motion's allegation that no action had been taken in appellant Cline's case since July 20, 1966, (twenty months prior to the filing of the motion to dismiss) and in appellant Swain's cases since September 28, 1965, (thirty months prior). At best, these statements are argumentative denials of personal neglect (as distinguished from their prior attorneys' tacitly admitted neglect) 3 to prosecute their cases against the appellees.
The statement of reasons for lack of prosecution was followed by a prayer that the motion to dismiss be denied and 'that Defendant be ruled to answer.' The signature was followed by the words 'Oral Argument Requested.'
No evidentiary hearing on the motion was requested or held, but oral argument was had on May 1, 1968, the entry of which also notes that '(t)he Court takes the same under advisement.' No bill of exceptions or transcript of what was said at the oral argument appears in the record.
Prior to the oral argument, and on the same day that plaintiffs filed their statement of reasons for lack of prosecution, defendants filed what is denomiated 'Brief in Support of Defendants' Motion to Dismiss', which points out:
'That there has been no compliance with this Court's order to show cause on or before April 18, 1968, either orally, or in writing, and a mere appearance by the attorneys for the plaintiff is not even substantial compliance with this Court's order.' 4
Each of the three transcripts shows two entries for July 17, 1968, (seventy-six days after the oral argument). The first of these entries recites: 'Plaintiff files additional brief and memorandum of authorities in opposition to motion to dismiss.' The brief and memorandum is not set out in that entry or otherwise identified, described or summarized. But the second entry recites the filing of a letter
'which said LETTER is in words and figures as follows, to wit:
'Dear Judge Nixon:
'You will recall that during April we argued on a Motion to Dismiss for lack of prosecution in the above entitled causes. Since that time I have come across the following two cases, which I believe should be considered in these causes:
'Bilat (sic) vs Folta 228 N.E.2nd. 888
The briefs of both parties seems to be in agreement that the above quoted letter is the 'additional brief and memorandum of authorities' mentioned in the first entry.
Defendants' attorney then wrote a letter to the trial judge which also seems to have been noted twice in the record, first as a 'brief and memorandum' and secondly as a letter, and which is as follows:
'Dear Judge Nixon:
'I am in receipt of a copy of a letter by Ramsey and Ramsey in which the cases of Bielat vs Folta, 228 N.E.2nd, 88 (888) and State ex rel Uzelac vs. Lake Criminal Court, 212 N.E.2d, 1221 (21) were cited by counsel.
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