Posin v. Marcus

148 A.2d 791 (1959)

Hyman R. POSIN, Appellant, v. Sam MARCUS, t/a Marcus Construction Company, Appellee.

No. 2320.

Municipal Court of Appeals for the District of Columbia.

Argued January 12, 1959.

Decided March 3, 1959.

George Sanford Jordan, Washington, D. C., for appellant.

H. Max Ammerman, Washington, D. C., for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

QUINN, Associate Judge.

The only question on this appeal is whether there was an abuse of discretion in the dismissal of appellant's action for failure to prosecute with diligence.

The facts are these: In March 1953 appellant sued appellee alleging a breach of warranty in connection with the sale of a house. The case was tried in April 1955 and resulted in a judgment for appellee. Appellant filed a motion for new trial, which was granted July 19, 1955. No further action was taken until May 1958 when the case was placed on the trial calendar. Appellee then filed a motion to dismiss the action for failure to prosecute with diligence, and after argument the motion was granted.

In bringing this appeal, appellant contends that the court erred in finding a lack of diligence in prosecuting the case. Appellee urges that the record indicates a demonstrable lack of diligence, that the trial judge's action in dismissing the complaint was correct, and that there was no abuse of discretion.

It has long been established in this jurisdiction that a plaintiff is required to prosecute his action with due diligence, and that lack of such diligence warrants dismissal of the action. Furthermore, this court has held:

"* * * that the question of lack of diligence in prosecution is one of fact for the trial court, and that the grant or denial of a motion to dismiss on that ground rests in the sound discretion of the trial court. * * * We will invade this discretionary field *792 of the trial court only in an extreme case, * * *."[1]

The affidavit filed on behalf of appellant in opposition to appellee's motion to dismiss endeavored to explain and excuse the three-year delay, but in our opinion, it fell far short of doing either.[2] We do not think appellee should be forced to defend himself against a claim which lay dormant for more than three years when, with a little effort on appellant's part, it could have been adjudicated within a few months. On the record before us, we conclude that the trial judge had ample justification of his action.

Affirmed.

NOTES

[1] Berch to Use of Nationwide Mut. Ins. Co. v. Rosner, D.C.Mun.App.1957, 136 A.2d 260, 261.

[2] See Shakesnider v. Rosenfeld, D.C.Mun. App., 1958, 144 A.2d 106.