Penn v. Irby

Oct 3, 1986
85-265
Versions:496 So. 2d 751

This is an appeal from an adverse ruling on plaintiff-appellant‘s motion, pursuant to Rule 60 (b), A.R.Civ.P., for relief from the circuit court‘s order dismissing his case.

Appellant appeared pro se during all of the proceedings below. Trial of the case was reset for April 4, 1985, after several prior settings at which the appellant failed to show. On April 4, 1985, the appellant again failed to appear, and the trial court dismissed the case for lack of prosecution. On May 31, 1985, the circuit court conducted a hearing to consider appellant‘s 60 (b) motion to set aside the order dismissing the case. Appellant argued that he was not notified of the date of his trial. The court denied appellant‘s motion.

The issue is whether the circuit court erred in denying appellant‘s motion.

The record indicates that the trial was set a number of times and that on each resetting copies of the trial docket were sent by certified mail to the appellant. Additionally, on March 28, 1985, appellant was notified by telephone of his trial setting of April 4, 1985. He was reminded once again on April 3, 1985, when he called the judge‘s office.

The limited issue presented to the circuit court by the Rule 60 (b) motion was whether there was “mistake, inadvertence, surprise, or excusable neglect” which would have entitled appellant to relief. We will overturn the circuit court‘s ruling only upon a showing of an abuse of its discretion. Gallups v. United States Steel Corporation, 353 So.2d 1169 (Ala.Civ.App. 1978).

Appellant fails to point out anything which suggests an abuse of discretion by the circuit court. Nor does our review of the record suggest an abuse of discretion. Therefore, the denial of appellant‘s Rule 60 (b) motion is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ., concur.