`The power of courts to dismiss a case because of failure to prosecute with due diligence is said to be inherent and independant of any statute or rule of court.' 17 Am. "* * * This review involves a dismissal for failure to prosecute with due diligence, and may be sustained on facts not within the cited statutory provisions. 427, 142 S.W.2d 1, 2, the following law is stated: If the order was one of dismissal the trial court was without power to reinstate the cause in 1944, or to make any order touching it. "The trial court has inherent power to dismiss a cause for failure to prosecute with diligence. Co., Mo.App., 226 S.W.2d 97, 98, the court made the following declaration of law: ![]() It is defendant's first contention that the trial court was without power to enter the judgment reinstating plaintiff's cause of action for the reason that said order and judgment was made more than thirty days after final judgment of dismissal. In passing upon the issues involved herein we will refer to the respondent as plaintiff and to appellant as defendant, being the position they occupied in the lower court. The admitted facts show that plaintiff's cause of action was dismissed by the court for want of prosecution that no notice of the intended action of the court had been given to plaintiff or plaintiff's attorneys that at the time of the entering of the judgment of dismissal the action had not been set for trial and the plaintiff was not in default. The defendant appealed from this judgment. This motion was by the court taken up on November 23, 1953, and, after hearing, was, by the court, sustained. On October 24, 1953, more than thirty days following the court's order dismissing plaintiff's petition, plaintiff filed a motion to reinstate her cause of action, alleging, among other things, that plaintiff received no notice of the court's action in dismissing her petition and had no opportunity to be present and heard on the matter as required by law. On September 7, 1953, the first day of the September Term of the Pulaski County Circuit Court, the court on its own motion, made the following order: "Cause dismissed for want of prosecution." To this amended petition defendant filed a motion to dismiss which motion was pending at the time of the dismissal of plaintiff's petition. October 10, 1952, an amended petition was filed by plaintiff without leave of court. On September 22, 1952, defendant filed an answer to the petition. The suit was filed November 14, 1950, in Texas County, and transferred by change of venue to Pulaski County. Plaintiff filed an action for damages against defendant for personal injuries alleged to have been caused by the negligence of the defendant in permitting a cow to injure plaintiff while attending a public sale on defendant's farm. *28 The evidence, necessary for an understanding of the issues involved, is as follows: This appeal is from a judgment of the trial court sustaining a motion to reinstate plaintiff's cause of action. ![]() ![]() Green & Green, West Plains, for respondent.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |