Opinion
At Law. Action by Robert D. Dauphinee against the American Range Line, Incorporated. On petition to vacate order of dismissal.
Order in accordance with opinion.
E. Herman Fuiman, of Philadelphia, Pa., for plaintiff.
Krusen, Evans & Shaw and Edwin Longcope, all of Philadelphia, Pa., for defendant.
KIRKPATRICK, District Judge.
Rule 41(b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, provides that a judgment of dismissal ‘ For failure of the plaintiff to prosecute or to comply with these rules,’ shall, unless otherwise specified, operate as an adjudication upon the merits. This suit was dismissed for want of prosecution February 1, 1940. Rule 60(b) provides that, provided the motion is made within six months after judgment, a party may be relieved on motion from a judgment taken against him through his excusable neglect. This rule, I think, gives the Court power to act in this case.
I think that the plaintiff's petition to set aside the order of dismissal shows sufficient excuse for failure to prosecute to make it proper to set aside the judgment of dismissal. The defendant denies the facts, and, of course, the plaintiff will have to prove them.
I therefore direct that the case be placed upon the next trial list. A hearing will be held upon the petition to vacate the order of dismissal when the case is called. If the allegations of the plaintiff's petition are sustained by the evidence, the order of dismissal will be vacated, and the trial of the case will proceed forthwith.