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FRIED EX REL. BERGER SUPPLY CO. v. FEOLA

December 28, 1954

Albert FRIED, for the USE of the BERGER SUPPLY COMPANY; for the use of the Commercial Investment Trust Incorporated, now for the use of the Federal Housing Administrator, acting on behalf of the United States of America, Plaintiff,
v.
John FEOLA and Teresa Feola, Defendants



The opinion of the court was delivered by: MARSH

This matter came on for trial and was met in limine by an oral motion for dismissal by the defendant, Teresa Feola, for the reason that she has been prejudiced in her defense by the plaintiff's lack of diligence in prosecuting this action, *fn1" and for the further reason that plaintiff had agreed on December 5, 1950 to the dismissal of the case if the witness Albert Fried was not found by January 2, 1951.

Testimony was taken of the witnesses present primarily to determine how many times the case had theretofore been called for trial. Although the defendant claims to have been seriously prejudiced by the death of her husband, a co-defendant, on June 23, 1953, whereby she was deprived of his testimony, it was not plainly apparent that the alleged prejudice was the result of plaintiff's lack of diligence in prosecuting the action. Whereupon, the court requested the defendant to make her motion in writing and submit affidavits. This was done and the United States Attorney has filed an answer to the motion. The court ordered the parties to proceed to trial because the witnesses for both sides were present.

 The court is of the opinion that the motion to dismiss should be denied, and that judgment should be entered for the plaintiff.

 Motion to Dismiss

 The complaint was filed on November 21, 1939 against John Feola and Teresa Feola. An answer was filed on September 6, 1940. No praecipe was filed by either side to list the case for trial, *fn2" and on July 23, 1948 the Clerk notified both sides that the case should be dismissed under Rule 17 *fn3" unless objections were filed. On August 4, 1948, objections were filed by a former Assistant United States Attorney, representing the plaintiff, in the form of a letter addressed to the Clerk advising that 'We are attempting to secure an offer in compromise in settlement of this claim and would therefore appreciate your holding this matter in abeyance until further notice from this office'.

 In December, 1950, the Chief Judge, without praecipe from either party, assigned the case to Judge McVicar for trial. At a hearing held before Judge McVicar on the 5th of December, 1950, the plaintiff, representing that it could not proceed without the presence of one Albert Fried, 'a necessary witness', procured a continuance over the strenuous objections of the defendants. However, counsel for the defendants drew an order, which was signed by Judge McVicar and agreed to by counsel for the plaintiff, which stated that 'if Plaintiff is unable to proceed for trial on or before Jan. 2, 1951, a Motion to Dismiss with prejudice may be made'. However, it was not until February 16, 1951 that defendants again moved to dismiss the case with prejudice. Apparently, by that time Albert Fried had been found and the order of dismissal was never made because counsel for plaintiff would not consent to it. On June 4, 1951, the Clerk notified the defendants that the case would not be dismissed.

 Evidently, the defendants had not pressed this motion for dismissal because their counsel states that he was surprised to have received this notice from the Clerk; that he had taken it for granted that the order of dismissal had been made in February.

 Judge McVicar called the case for trial on November 13, 1951. Subpoenas were issued and served, inter alia, upon Albert Fried and a handwriting expert to testify on behalf of the plaintiff. However, according to the affidavit of counsel for the defendant, the plaintiff moved for and secured another continuance on the ground that 'Albert Fried was not available for trial and the United States Attorney reported he was uncooperative and would not testify'. This averment was not denied.

 Later, the case was assigned to me for trial and was called on September 13, 1954. At this time plaintiff was prepared to go to trial without Albert Fried, who was not subpoenaed or called as a witness. In the interim, different counsel had been substituted for the plaintiff.

 The affidavit of defendant's counsel states that to the best of his recollection, prior to December 8, 1950, he appeared for trial on at least four occasions, and that upon each of these occasions the assistant United States Attorney in charge requested a continuance upon the ground that Albert Fried, payee in the note in question, was not present and that plaintiff had not been able to ascertain his whereabouts or serve him with a subpoena. The record does not sustain counsel's recollection. It does not appear that the case had ever been put at issue by a praecipe, nor does it appear that it had ever been assigned to a judge for trial prior to December, 1950, nor does it appear that any subpoenas were issued for trial of this case prior to November 13, 1951. The United States Attorney states in his answer 'it no doubt was placed on the trial list many times, but was not reached due to the crowded condition of the trial list that exists'. No trial lists have been submitted to support this statement, but if true, no record of a continuance was ever made before December 5, 1950.

 With some merit, defendant argues that had the case been tried in December, 1950, without the help of Albert Fried, as it ultimately was tried, John Feola, her husband, co-maker and co-defendant, would have been able to appear and testify; that it was because of the unwarranted delay on the part of the plaintiff that defendant was deprived of the benefit of this material witness.

 The difficulty with the defendant's position is that on three occasions before Judge McVicar of this court, during the period from December, 1950 to December 13, 1951, she and her husband attempted to procure a dismissal of this action for lack of diligence in prosecution. Each time the learned judge in the exercise of his discretion either continued the case or refused to sign an order dismissing it. So far as appears from the record and docket entries, between 1939 and November 13, 1951, the defendants were quite content to let the case remain as it was until they were faced with trial in 1950 and 1951 when their efforts to have the case dismissed failed.

 In these circumstances defendant is calling on me to hold that the discretion of another judge of this court was not properly exercised in refusing to dismiss the case and in failing to enforce the alleged agreement to dismiss. I do not think I should do this. These rulings became the law of the case. Also, as a matter of comity, a judge of coordinate jurisdiction, except in the most compelling circumstances, should not overrule decisions of their associates based on the same set of facts. United States v. Firman, D.C.W.D.Pa., 1951, 98 F.Supp. 944, 946.

 Since November, 1951, it does not appear that the plaintiff has failed to prosecute this case diligently. When the case was next placed on my trial list and was called on September 13, 1954 for trial, plaintiff was ready and the case was tried. The unfortunate death of Mr. Feola in the meantime can be viewed only as one of ...


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