Venetia GARCES and Martin Garces, Appellants, v. Ann P. BRADLEY, Appellee.
No. 6471.
District of Columbia Court of Appeals.
Jan. 8, 1973.
Argued Nov. 6, 1972.
Defense testimony, through apрellant, was that he had indeed purchased an automatic handgun earlier that evening and placed it under the front seat of his car. However, he had never seen the gun seized by Officer Booker and surmised that someone had placed the weapon in the car in order to set him up.
At one point, upon objection of defеnse counsel to the prosecutor‘s line of questioning, the following conversation was held at the bench:
THE COURT: Am I correct Counsel that you raise no issue of the lawfulness оf the seizure?
[Counsel]: Pardon?
THE COURT: Am I correct that you raise no issue pertaining to the lawfulness of the seizure of the firearm?
[Counsel]: Right, Your Honor.
THE COURT: Then I will hold the question irrelevant.
[Prosecutor]: Excuse me, I‘m sorry.
THE COURT: He says he raises no issue about the lawfulness of the seizure. That means, that line of questioning is unnecessary. [Tr. at 10.]
Unaccountably, upon request, the court then announced to the jury that appellant raised no question about the lawfulnеss of the seizure; that, accordingly, no issue of the suppression or admissibility of evidence was present, and that if such issue were raised it would be the court‘s business, not theirs.
Counsel on appeal alleges, without any support from the record, that trial counsel did not consult with appellant before announcing that the seizure of the weаpon would not be challenged. Accepting this allegation as fact, however, does not benefit appellant for there was no search in this case, illegal or otherwise. While it became unnecessary to fully develop the details of appellant‘s initial encounter with the police officers, it is evident enough from thе record that Officer Booker seized a gun within his plain view, possessing the right under the circumstances to be in the position to have that view. United States v. Johnson, 143 U.S. App.D.C. 215, 442 F.2d 1239 (1971); Davis v. United States, D.C.App., 284 A.2d 459 (1971). It follоws that the admissibility of the gun in evidence was not subject to challenge and counsel‘s stated position on this issue was a legitimate one.
We have carefully reviewed the record in light of appellant‘s second claim of error and find the verdict supported by substantial evidence.
Affirmed.
Thomas J. Scanlon, Washington, D. C., for appellee.
Before KELLY, KERN and PAIR, Associate Judges.
PAIR, Associate Judge:
This case is before the court on appeal from an order dismissing for want of prosecution an action for damages arising out of an automobile accident.
The facts are not in dispute. On August 15, 1966, appellant Vеnetia Garces sustained personal injuries when a taxicab in which she was a passenger was involved in a collision with an automobile operated by appellee. On May 10, 1967, she and her husband complained against appellee, demanding damages for the injuries and for loss of consortium.1 Served with process on December 16, 1968, after issuance of three alias summonses, appellee answered the complaint and filed thereafter a third-party complaint against the operаtor of the taxicab in which appellant Venetia Garces was a passenger. Service of the third-party complaint was never accomplished, although four alias summonses were issued—the last on August 11, 1970.
It appears that no further action was taken in the case2 until March 6, 1972,
In the motion to сalendar it was urged that (1) appellee had not achieved service of the third-party complaint, (2) that appellants’ action was being delayed by reasоn of appellee‘s failure for more than one year to make further effort to serve the third-party complaint, and (3) that appellants were fearful that their complaint would be dismissed if they allowed the action to remain in limbo.
In opposition to the motion to calendar and in support of the motion to dismiss, it was urged that (1) thе cause of action occurred in 1966, (2) the case had been at issue since 1968 but no further action had been taken by appellants, and (3) appellee‘s unsucсessful efforts to serve the third-party complaint had in no way prejudiced or prevented appellants from pursuing their cause of action.
There is, appаrently, agreement that the sole issue on appeal is whether the trial court, in dismissing the complaint for want of prosecution, abused its discretion. Vested in the trial court, in this connection, is a sound discretion to be exercised with care, since a dismissal under
[T]he court should first resort to the wide range of lesser sanctions which it may impose . . . such as dismissal without prejudice or putting the case at the foot of the calendar. . . . In some cases they have ordered a sum assessed against the delinquent attorney,4 reasoning that this will vindicate the purposes of the rules without being unduly harsh on the party himself. . . .5 [Footnotes omitted.]
This approach is consistent with the well settled rule that the law abhors a default, and the corоllary of the rule that dispositions on the merits are favored. Cf. Barr v. Rhea Radin Real Estate, Inc., D.C.App., 251 A.2d 634, 635 (1969). Here, significantly enough, there is no showing in the record whatsoever that appellee was prejudiced by the delay or that the trial court found prejudice. Certainly the absence of any such showing was one of the consideratiоns which the trial court was required to weigh in exercising its discre-
Because a dismissal under
The order of April 12, 1972, dismissing for want of prosecution appellаnts’ suit is vacated and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.
So ordered.
KELLY, Associate Judge (dissenting):
We have made it clear on more than one оccasion that a ruling by the trial court on the question of lack of diligence in prosecution will be disturbed only in an extreme case. Akinyode v. Hawkins, D.C.App., 292 A.2d 795 (1972); Sitwell v. Government Employees Ins. Co., D.C.App., 263 A.2d 262 (1970); Shakesnider v. Rosenfeld, D.C.Mun.App., 144 A.2d 106 (1958); Berch v. Rosner, D.C.Mun.App., 136 A.2d 260 (1957). In my judgment this is not such a case. In its order granting the motion to dismiss the trial court found that “for a period of approximately 35 months the plaintiffs did not actively prosecutе this case . . . .” This unexplained delay,1 on undisputed facts,2 establishes lack of diligence as a matter of law. Sitwell, supra; Shakesnider, supra. Accordingly, rather than remanding the case to the trial court for further proceedings, I would affirm.