*1 Anesi, Chicago, Ill., ap F. Charles Plaintiff-Appellant, Virginia LEONG, pellant. Treacy, Wolfe, William P. Edward INC., SERVICE, TRANSFER RAILROAD George Barrett, Ill., ap Chicago, F. Company Eth Morgan Cab Stuart pellees. Cooper, ridge Defendants- W. Glenn Appellees. DUFFY, SCHNACKENBERG KILEY, Circuit 13582. No. States Court DUFFY, Judge. Circuit Circuit. Seventh Plaintiff, Virginia Leong, ais resident 1962. City, Missouri. On June riding was in 1958 she and was fare-paying passenger as a in a taxicab operated owned Morgan Company. Cab Near the Union Chicago, Station the taxi riding in which she was collided with a operated limousine cab Railroad Transfer Inc. Plaintiff seriously injured. showing A doctor, hospital made that her and medi- $9,000. exceeded cal bills complaint herein was filed on De- joined, cember issue deposition notices were filed on June August 1960 and The attor- *2 ney reported morning,.at m., for one of the defendants On the 11:15 a. same to the court Kansas that “We went out to the clerk called the for instant case depositions, I last month to take but none of the were think, doctors, referring present. Court, so nine and it lasted then The long, days, attorneys, “They deliberately we were there for and we the stated: get didn’t them all finished.” omitted to attend. The case there- will prosecu- fore be dismissed for want of The case the was called for trial on tion.” trial calendar on October Depositions were filed on October plaintiff at 10 a. m. Counsel for date, plain- and 1961. On the latter corporate and counsel for each defendant attorney presented tiff’s a motion to va- respective appeared. and the drivers cate the order of dismissal dated Octo- attorney attorney Plaintiff’s for and the 18, and that asked the cause defendant Railroad Transfer be reinstated. ex- Plaintiff’s counsel Inc. moved for a An affi- continuance. plained understanding it was his the davit of counsel continuance discloses the clerk call his officewhen the Court requested purpose of receiv- ready The trial. ing City copies extensive position Court said: “We are not in a there; depositions which had been taken lawyers. to render that kind of service to depositions the the submission you get impression, that it was errone- court-appointed physicians; so two lawyers ous. We can’t call before cases pretrial that a conference be held could come on to trial.” The Court observed: objections dep- at which extensive the respect “There has been no shown to the testimony osition could considered. Court at all in This case. motion this called 15 cases “We The Court stated: will be denied.” being morning, Monday here on attorney lawyers call. The on that Plaintiff’s were then asked no people if he up here to sit could be sworn as need the motion on file was don’t hold refused, say- have to not under We will continue cases. oath. Court attorney “No, any testimony a co- for I hear won’t for trial.” this rely “May more I one I on the said: record.” defendant, thing? at least I think 31, 1961, notice, On October preju- represent, will be plain- affidavit filed on behalf of of this Court the order unless diced asking tiff the District Court to recon- by impartial medi- plaintiff be examined sider its order entered on October authorities— n ” The Court stated cal again 1961. The Court denied the motion discovery permit matters it would any stating lawyers were discourteous— delay The Court a trial. kind leaving apparently for un- the courtroom “Gentlemen, hold again we will stated: der the circumstances hereinbefore stat- trial.” for nothing ed. There by any used of the attorney plaintiff and the for any discourtesy showed to the Court. left the defendants Thus, respective offices herself in this finds for their courtroom Although preparations trial. The situation. crit- hurried Court’s make attorney attorneys, he plaintiff’s shows icism was directed to all three affidavit would call two the defendants and one for the of the court the clerk believed plaintiff, it is the has been by telephone when the who as to commenced; penalized. day that such is She has not had her cause was and, stands, if order Court Cook she will the Circuit the custom day Superior Coun- not have had in court as the County, Court of Cook Municipal as statute of limitations has run. On ty, hand, although being practice of a number other defendants’ coun- well guilty of the Northern sel was the same sort of mis- federal understanding plaintiff’s as the Illinois. District liability on any sides were absent from the be free clients will courtroom* the de- and when he refused to vacate claim. account of judgment. be commended Trial courts should *3 attorneys delays prevent in de- both their to endeavors prepara- Un- fendants had made extensive their trial of fortunately, calendars. cases pre- attorneys in lax had tions for trial. side are Neither some viously Judge bring At continu- asked the for a to trial. their efforts to cases may a de- of ance. We think a situation the interest times it be in trial, postpone where the trial have vacated the time court should fendant to judgment in the case such us the default ac- but no situation faces because such attorneys jus- appropriate accomplish tion “is at plaintiff to The failure bar. present Klapprott States, be tice.” the defendants to See v. United 601, 615, m. 335 93 L.Ed. 11:15 on October U.S. 69 court at S.Ct. a. by misapprehension all 266. due a shared to three of them. judgment below is reversed grant 60(b), F.R.Civ.P., 28 U.S.C.A. remanded to with instructions Rule Inadvertence; Mistakes; provides: “(b) motions of the order of to vacate Neglect; 18, 1961, Newly Discovered dated Excusable dismissal October to Fraud, Evidence; and: etc. On cause. This should be reinstate the suit just, upon upon court as are terms tried the merits. such legal may repre- party or his relieve Reversed. order, judgment, or final sentative from a following proceeding reasons: Judge SCHNACKENBERG, Circuit inadvertence, surprise, (1) mistake, or (concurring). * * neglect; excusable reasons Link For the which stated Defense In Bar Co. v. Standard Grate Co., R. R. 291 F.2d Wabash 7 D.C., al., Corp. at et 3 F.R.D. Plant foregoing opin 542, 548, I concur in the up- page 372, relied where the defendant ion, it unconscionable because would be and because others to secure for serious cause of action to aof of the other defendants failure (for personal injuries new suit which a counsel, judgment was a default secure entered, by the be barred now statute vacating de- Court in limitátions) should be dismissed without stated, trial in the “Powers vested personal However, I fault. feel ob- liberally 60(b) by be Rule should courts liged a word on behalf may dis- in order that cases be exercised judge, those who is one of district * * posed their merits rising pending faced with a mountain litigation, disposition much Air In Bridoux Eastern Erick Rios delayed by annoying Lines, U.S.App.D.C. is situa- 214 F.2d quoted page as that involved in this at tions 210: “Since universally trial on courts favor that, on a It is conceded trial merits, slight abuse of discretion re- call, the court announced that case fusing judgment aside a default is to set lawyer for trial. trial held Every justify a or- sufficient to reversal of the what that means. He is knows der.” immediate- alerted ly the case is for trial. when called not hold it We do suggestion that “custom” which suit on Octo- there is a of discretion to dismiss the designated vaguely some the case was called transfers when responsibility employeesthe and none court law- time second present yers present in such a case when the courtroom. How- actually trial, legal ever, is called is an abuse sound dis- it was an shifting responsibility to listen cretion the Court refused why incredible when lawyer responsible no asks. for both which to the reason court that lawyer, told who is permitted his case held for is is persons away until remain notify him that therewith connected
presence required, an unwholesome system, involving inter- favoritism and discharge fering proper of their involved,
public employees duties why this will be I see no reason created. require court should place a trial *4 stamp approval an
operation in his courtroom. own HELTON, Appellant,
Billie Joe America,
UNITED STATES Appellee.
No. 19435. States Fifth Circuit. Tessmer, Dallas, Tex., Charles W.
appellant. Sanders, Atty., Barefoot U. S. B. H. Jr., Dallas, Timmins, Atty., Asst. U. S. Tex., appellee. ' HUTCHESON, RIVES
BELL, Circuit PER CURIAM.
Appellant, represented by counsel of selection, pleaded guilty his own two. counts an indictment. Count One charged having him with devised using scheme to defraud mails, 1342,, in violation of 18 U.S.C. § charged Count Two while him with vio- lating 18 U.S.C. He sen- § years,, count tenced each to serve three - concurrently. sentences to run'