Holland v. Capital Transit Co.

114 A.2d 426 | D.C. | 1955

CAYTON, Chief Judge.

We are asked to review an order of the trial court refusing to reinstate a case which had been dismissed for want of prosecution. The suit charged that plaintiff was injured because of th'e sudden stopping of a street car on which she was a passenger. The incident allegedly happened more than eight and a half years ago. Plaintiff filed her suit in the United States District Court on October 11," 1950, one day’before her claim Would have been barred,by limitations. In that court the pretrial judge, being of the opinion that the action would not jústify a judgment in excess of $1,000, ordered that it be certified to the Municipal Court as authorized by Code 1951,’ § 11-756. That order of certification was entered in February 1953. For a year thereafter plaintiff did nothing to have the case calendared for tidal in the Municipal Court, and following pretrial in that court the pretrial judge on April 29, 1954, continued the case for four and a half months'because of plaintiff’s illness, setting the trial date for September 15, 1954. The record reveals that the pretrial judge took that action with the consent of counsel for both parties, “with the understanding that if counsel for plaintiff finds, that she will not be able to attend personally, her oral deposition will be taken in time for use at the trial.” On September 3 plaintiff’s attorneys filed a motion for leave to withdraw from the case, reciting that plaintiff had failed to cooperate with them, and had refused to put up costs for subpoenas and depositions; they also recited in an affidavit that plaintiff refused to pay a $35 medical bill and that in consequence of such refusal, the physician refused to. furnish a medical report. The affidavit stated that plaintiff was able ’ to pay the expense items because ever since 1948 there had been on deposit in the District Court approximately $3,300 which had been paid into the court by the transit company fol- . lowing a verdict in favor of the plaintiff in a prior suit; that plaintiff refused to accept that money because she felt the amount awarded was insufficient; and that she was still hoping to succeed on appeal, despite the fact that review had been denied because of her failure to proceed timely in the United States Court of Appeals.¹ The attorneys were given leave to withdraw and on September 15, 1954, the date set for the trial, 'plaintiff appeared in the motions branch and made an oral request for continuance.’ The case was again continued until October 6, and the'record recites that plaintiff was “informed that no further continuance would be granted upon the present posture of the'-Case and that it was her firm obligation to retain counsel prior to that date.” On October 6 plaintiff did not appear and the case was dismissed for-want of' prosecution. Although plaintiff learned of the dismissal that same day, • she took' no step to be relieved of her default or have' the case- reinstated until January 5, 1955. This was three months, less a day, from-the time of dismissal.

Present counsel, for appellant in contending that .the dismissal was improper relies on Municipal Court Rule 40(h)-which provides for telephone, notice by the assignment, commissioner on the day preceding the trial day. • The ready and obvious answer is that there was no occasion fqr the assignment cqmmissjoner .to give apy notice of- the trial date, because that, date had already been fixed three weeks earlier .by the motions judge in open court, in the presence of plaintiff, and plaintiff was told in plainest words that'she was expected to proceed with her case on .October 6 and that there would be no further continuances.It is not suggested that notice from the assignment commissioner would have carried greater weight than formal notice by a judge in open court. Tn the circumstances it is clear that rule 40(h) is of no help to appellant.

Appellant raises a separate question as to the propriety of the action of the motions judge in limiting plaintiff to a three weeks continuance. Without characterizing plaintiff’s conduct of her case, we think that because of what had already taken place in this litigation, a judge would have ample reason to say that there had .already been delays aplenty, and it is quite clear that there was no abuse of discretion in drawing a final line and saying that the case must be tried' in three weeks.

Appellant’s motion for reinstatement was filed under Municipal Court Rule 60(b) [which corresponds to F.R.Civ.P.Rule 60 (b), 28 U.S.C.A.]. That rule provides that a motion of'this kind “shall be made within' a reasonable 'time” and not more than three months after the judgment' or order involved. No explanation has bee'n 'offered as to why plaintiff waited until the day before the three months’ deadline to file her motion, and there is more than a little doubt in our minds whether that was a “reasonable time” for plaintiff to have acted under that rule. And we see no occasion to discus's the merits 'of her motion at any length. We are satisfied there was no error and no abuse ’o'f discretion in any of the rulings made in this case; and specifically, the order of' dismissal and' the refusal to set aside the dismissal. Generally' supporting what we have said are a vast number of cases, including the- following recent ones in this court: Dickson v. Marshall, D.C.Mun.App., 111 A.2d 879; Miller v. Iskovitz, D.C.Mun.App., 111 A.2d 621; Gee How Oak Tin Ass’n of District of Columbia v. Potomac Chemicals Corp., D.C.Mun.App., 110 A.2d 86.

Affirmed.-'-

1 . The proceedings in the earlier case are set out in Holland v. Capital Transit Co., 87 U.S.App.D.C. 48, 184 F.2d 688, in which the court denied certain motions of the plain'tiif fo.r extensions of time, and thus terminated her appeal. That opinion was rendered May 22, 1950.