Welch v. Ruggles-Coles Engineering Co.

Decision Date02 May 1927
Docket NumberNo. 304.,304.
Citation19 F.2d 288
CourtU.S. Court of Appeals — Second Circuit

R. H. McNeill, of Washington, D. C., for appellant.

Mayer, Warfield & Watson, of New York City (C. A. L. Massie and Donald L. Brown, both of New York City, of counsel), for appellee.

Before MANTON and SWAN, Circuit Judges, and CAMPBELL, District Judge.

CAMPBELL, District Judge (after stating the facts as above).

The conditions contained in the orders of November 15, 1922, and January 21, 1924, related to the prosecution by the appellant of an action or proceeding in the District of Columbia, having for its purpose the appointment of the appellant as administratrix of said Abraham T. Welch by the probate court of that District.

Appellant contends that the several orders and the decree of dismissal were improvidently and illegally or unjustly granted, and that the judges making such orders were without any authority to grant any orders requiring appellant to leave this jurisdiction and go into another jurisdiction and litigate a matter which should have been litigated in the Southern district of New York.

The bill of complaint alleges (paragraph 2) that the appellant was administratrix, but does not state what court granted the letters of administration, merely that she was administratrix "by due process of law," and this would have covered appointment in New Jersey, as well as in the District of Columbia. but both by the letter of November 8, 1919, and affidavit verified April 23, 1926, presented on the final motion which resulted in dismissal, it is apparent that her attorneys felt that they could not successfully proceed without having appellant appointed as administratrix in the District of Columbia.

While the provisions of the two orders in question, with reference to the proceedings in the District of Columbia, are unusual, it is clear that they were inserted because the appellant was urging the existence of such litigation as a reason for not dismissing the bill, and the court was trying to remove that reason by requiring those proceedings to be diligently prosecuted.

That the proceedings in the District of Columbia were not required, nor instituted under the direction of said orders, is apparent, when you consider that the appellant filed her first petition in the District of Columbia on November 14, 1919, three years and one day before the order of November 15, 1922, was made. Not only one, but three, petitions were...

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4 cases
  • Chira v. Lockheed Aircraft Corp.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 14, 1980
    ...571, 71 L.Ed.2d 881 (1927).5 See, e. g., United States v. Fischer, 93 F.2d 488 (2d Cir. 1937) (Conformity Act); Welch v. Ruggles-Coles Engineering Co., 19 F.2d 288 (2d Cir. 1927) (Equity Rule 57). See generally Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).6 The R......
  • Soderberg v. Atlantic Lighterage Corporation, 270.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 2, 1927
  • Carnegie Nat. Bank v. City of Wolf Point
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 14, 1940
    ...in this case is whether the District Court abused its discretion in dismissing the case for want of prosecution. Welch v. Ruggles-Coles Eng. Co., 2 Cir., 19 F.2d 288, 289; Carnegie Steel Co. v. Colorado Fuel & Iron Co., 8 Cir., 14 F.2d 1, 4; Facer Forged Steel C. W. & L. W. Co. v. Carnegie ......
  • Refior v. Lansing Drop Forge Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 5, 1942
    ...the District Court abused its discretion in dismissing appellant's cause on the facts appearing in the record. Welch v. Ruggles-Coles Engineering Company, 2 Cir., 19 F.2d 288. Parties to litigation are entitled to its prosecution with reasonable diligence. Where prejudice results to one par......

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