108 A.2d 91 | D.C. | 1954
• •This suit was- filed June 28, 1950, for windstorm damage under an insurance policy issued by appellant. After several delays and continuances,
First appellee suggests that the.order appealed from is not a final order and hence not appealable. We have held, however, that an order 'vacating a default judgment under rule 60(b) is án appealable order.
Thus we must consider whether the trial court erred in setting aside the dismissal. It is clear that both the motion to dismiss and the motion to set aside'the dismissal under rule 60(b) were addressed to the discretion of the court, and the court’s decision should not be reversed unless there has-been an abuse of such discretion.
Rule 60(b), which corresponds to Fed.Rules .Civ.Proc. rule 60(b), 28 U.S. C.A., is broadly drawn and “should be given a- liberal construction.” Barber v. Turberville, D.C.Cir., — F.2d -. It provides that the court-' may relieve a party from a final judgment or.order for “(1) mistake, inadvertence, surprise or excusable neglect * * * or (6) any other reason justifying relief from the operation of the. judgment.” Here the judge could have found that counsel of record (and, consequently, present counsel) did not receive the notice of the hearing on the motion tó dismiss which was mailed by the clerk’s office, and for that reason could have set aside the dismissal under subsection 6 of rule 60(b).
Appellant argues that the only grounds shown for relief rested upon inexcusable negligence by plaintiff’s administratrix or her counsel. • It is probably true that the case would have been kept in a more active status if, soon after her qualification, the administratrix had been substituted as plaintiff. It is also true that there was unnecessary confusion in the change of attorneys. Mr. Wren, no longer the actual attorney, continued as attorney of record, probably to preserve continuity
Affirmed.
. The various continuances and delays are detailed in the briefs. We need not discuss them here because all the continuances were with the consent of appellant and occurred before the death of the original plaintiff.
. Under Municipal Court rule 25(a) the court may, upon death of a plaintiff, order substitution of parties within two years after the death.
. Lombard v. Welch, D.C.Mun.App., 104 A.2d 416; Blacker v. Rod, D.C.Mun.App., 87 A.2d 634.
. Slater v. Cannon, D.C.Mun.App., 93 A.2d 92; Washington v. Sterling, D.C.Mun. App., 90 A.2d 836; Boyle Bros. v. Holt, D.C.Mun.App., 83 A.2d 666; Jarcy v. Griffith, D.C.Mun.App., 65 A.2d 919.
.Municipal Court rule 25(a).