Vaughan v. CITY BANK & TRUST COMPANY, NATCHEZ, MISS.
| Decision Date | 17 March 1955 |
| Docket Number | No. 15163.,15163. |
| Citation | 218 F.2d 802 |
| Parties | Jack C. VAUGHAN, v. CITY BANK & TRUST COMPANY, NATCHEZ, MISS. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack C. Vaughan, in pro. per.
R. Brent Forman, Natchez, Miss., for appellee.
Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge.
Acting for and representing himself, plaintiff brought this suit, to recover of defendant $10,416.95 which plaintiff paid it and $250,000.00 as damages for defendant's having wrongfully caused to be published a notice of trustee's sale of property on which plaintiff had given a deed of trust, and to cancel and set aside said deed of trust.
The proceedings set out below1 followed, and plaintiff on June 9, 1954, giving notice of appeal "from the following orders of this court in this cause, to-wit, order of Nov. 20, 1953 * * * and (2) final order of May 17, 1954, dismissing the action" is here seeking their reversal.
The appellee moves to dismiss the appeal from both orders. As to the order of Nov. 20, 1953, which overruled the motion to reconsider the order of Oct. 19, 1953, overruling plaintiff's motion for summary judgment, he insists that it was not a final order and therefore was unappealable, as was the order of Oct. 19th itself. He further insists that if the order of November 20th was appealable, the appeal was not filed in time.
In support of his motion to dismiss the appeal as to the order of May 17, 1954, pointing out that this order was entered at the request of plaintiff, and citing many cases in support,2 he insists that it is a voluntary dismissal and, being therefore a consent decree, it is not an order from which plaintiff can appeal.
As to the order of November 20, 1953, we agree with appellee that, for the reasons put forward by it, the order was not an appealable one, and the attempted appeal from it must be dismissed.
As to the dismissal order of May 17, 1954, however, while we are of the clear opinion that it was entered properly and advisedly and no error requiring its reversal has been made to appear, we are also of the opinion that the order was a final and appealable one, and the motion to dismiss the appeal from it must be, and it is, denied.
It is true that upon its face the dismissal of the action appears to have been voluntary rather than involuntary, an order invited and consented to rather than one entered in invitum. The record taken as a whole, however, shows plainly that appellant took the course he did not for the purpose and with the intent of voluntarily discontinuing his action, but to obtain an involuntary dismissal within the rule of Ruff v. Gay, 5 Cir., 67 F.2d 684 and Weeks v. Fidelity & Cas. Co., 5 Cir., 218 F.2d 503, and that the order was in reality, and should be regarded as, an involuntary dismissal for want of prosecution and therefore a final judgment from which plaintiff could appeal. Cf. Milton v. U. S., 5 Cir., 120 F.2d 794, 795; Cybur Lbr. Co. v. Eckhard, 5 Cir., 247 F. 284; Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460.
When it comes, however, to appellant's position, that he was entitled to a summary judgment on his pleadings, and could and would stand on them and refuse further to prosecute his suit and the court erred in dismissing it, the matter stands quite differently.
It is perfectly clear, we think, that there is no merit in plaintiff's position and that the court did not err in dismissing his suit for...
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Parr v. United States, 15612.
...2 Cir., 8 F.2d 460; Ruff v. Gay, 5 Cir., 67 F.2d 684; Weeks v. Fidelity & Casualty Co., 5 Cir., 218 F.2d 503; and Vaughan v. City Bank & Trust Co., 5 Cir., 218 F.2d 802. He further urges that the order, entered on defendant's motion, transferring the case from the Corpus Christi to the Lare......
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Stone v. Wyoming Supreme Court
...action taken on a post-judgment motion. American Fire & Casualty Co. v. Allison, 5 Cir., 189 F.2d 255; Vaughan v. City Bank & Trust Co., Natchez, Miss., 5 Cir., 218 F.2d 802, certiorari denied 350 U.S. 832, 76 S.Ct. 67. Neither will a direct appeal lie from an announced declination to enter......
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Williamson County Broadcasting Co. v. Williamson County Bd. of Ed.
...summary judgment, the proper procedure is for the trial judge to dismiss for want of prosecution. See Vaughan v. City Bank & Trust Company, Natchez, Miss., 218 F.2d 802 (5th Cir. 1955), which holds that where plaintiff refused to prosecute his action after his motion for summary judgment ha......
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Vaughan v. FIRST NATIONAL BANK OF GREENVILLE, MISS., 14921.
...on plaintiff's motion, plaintiff would stand no better here. For, as we have pointed out in the opinion this day filed in Vaughan v. City Bank, 5 Cir., 218 F.2d 802, plaintiff could not have complained of a dismissal on his own motion since on the plainest principles he was not entitled to ......