SALMON ET AL.
v.
CITY OF STUART, FLA., ET AL.
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The court held that the appeal was timely taken and that the trial court was authorized to dismiss the action for want of prosecution.
Plaintiffs filed a third suit which remained inactive for over a year and three months. The trial court dismissed the action for want of prosecution a…
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PER CURIAM.
The appeal is from an order, dated October IT, 1950, dismissing the cause, under Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C.A. for want of prosecution, and an order dated February 26, 1951, denying her petition to vacate the order and reinstate the cause.
Confronted by a motion to dismiss the appeal because not timely taken,, in that the order of dismissal was entered on October 11, 1950, and the notice of appeal was filed March 15, 1951, more than 150 days afterward, while the order denying the motion to vacate was not appealable, Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F. 2d 406,1 appellants meet it with the claim that the running of the time for appeal from the order of Oct. 11th, which was appealable, was tolled by the filing of the petition to vacate the order of dismissal and reinstate the action. We agree with appellant that the appeal was timely taken from the order of October 11th, because the consideration and determination by the judge of the petition to vacate it operated to extend the time for appeal therefrom. 'Crommelin v. Mark-waiter, 5 Cir., 181 F. 2d 948, at page 949.
When it comes to the merits, though, we think it plain that the order should be affirmed. Putting to one side that what is being litigated here is old straw which has been thrice threshed, or sought to be threshed, in the courts, it stands undisputed that, following the filing of this, the third suit, no action was taken in it by the plaintiffs for one year and three months.
Matters standing thus, the court was fully authorized to'dismiss the action.2 The order of dismissal is
Affirmed.
. French v. Jeffries, 7 Cir., 161 F. 2d 97; U. S. v. Muschany, 8 Cir., 156 F. 2d 196; Crommelin v. Markwalter, 5 Cir., 181 F. 2d 948.
. Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F. 2d 406; Partridge v. St. Louis Joint Stock Land Bank, 8 Cir., 130 F. 2d 281; Moore’s Federal Practice, 1st Ed., p. 3043; Zielinski v. U. S., 2 Cir., 120 F. 2d 792; Shotkin v. Western, 10 Cir., 169 F. 2d 825.
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Quillie B. Woodham v. The Am. Cystoscope Co. OF Pelham, 335 F.2d 551 (5th Cir. 1964)
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Silas v. Sears, 586 F.2d 382 (5th Cir. 1978)
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Arra Ray Messenger v. United States, 231 F.2d 328 (2d Cir. 1956)
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hicks v. Bekins Moving & Storage Co., 115 F.2d 406 (9th Cir. 1940)
- Cromelin v. Markwalter, 181 F.2d 948 (5th Cir. 1950)
- Shotkin v. Westinghouse Elec. & MFG. Co., 169 F.2d 825 (10th Cir. 1948)
- United States v. Muschany, 156 F.2d 196 (8th Cir. 1946)
- Partridge v. ST. Louis Joint Stock Land Bank, 130 F.2d 281 (8th Cir. 1942)
- French v. Jeffries, 161 F.2d 97 (7th Cir. 1947)
- Zielinski v. United States, 120 F.2d 792 (2d Cir. 1941)