Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
This is an appeal from the judgment dismissing plaintiff's case with prejudice.Plaintiff says that the dismissal in this fashion went beyond judicial discretion and deprived him of his day in court.
The occasion for the appeal arises out of an effort to try to clear the very conjested docket in the Western District of Pennsylvania. Charged as we are with the responsibility for the administration of justice in federal courts in our Circuit,*fn1 the members of this court judicially know what the situation there has been. The court was undermanned. Two of the judges had died, there was delay in filling the posts. Through the co-operative courtesy of judges from other circuits an effort was made by the Chief Judge of this Court and the Chief Justice of the United States to get judicial help to relieve the situation.
The facts out of which this appeal grew took place in the fall of 1950. The plaintiff's case had been pending since 1947. It had been listed as ready for trial on four former occasions but had not been tried. There is no basis for attributing this to any fault of the plaintiff. We know what the state of the Western District's docket was. We have no reason for thinking that the failure to try this case earlier was due to anything but that docket congestion.
In September, 1950 a list was prepared. The lawyer who did not want his case on the daily list was directed by court rule to take immediate steps about it.*fn2
The plaintiff's case was on the list.
The case was in charge of Mr. Vincent M. Casey who was taken ill without warning about October 6, 1950, and was confined to the Bradford, Pennsylvania, hospital for ten days. Arrangements were made to take five Baltimore and Ohio railroad cases from the list to await Mr. Casey's recovery. Mr. Casey and the other members of his firm represent the Baltimore and Ohio in many pieces of litigation in the Western District.
On October 10th when the call was made with the daily list, Miss Scigliano from Mr. Casey's office told the court of Mr. Casey's illness and Mr. Pugliese, representing the defendant, told the court at that time that he would like to have the case go over until October 23rd because of his commitment to represent a defendant in a capital case before the Board of Pardons in the week of October 16th. The Court then said, "I will not direct the clerk to continue it. If the clerk has other cases that he can put in before this, I will suggest that he do that, but I can't continue this case. The lawyers may think I am severe, but three or four months from now you will appreciate it."
Mr. Harry Savage, a partner of Mr. Casey, was assigned this case. He had no previous knowledge of it whatever. On October 11th Mr. Savage had a talk in the office of the clerk of the court, Mr. Stephen Laffey. Mr. Laffey told him, after the facts were stated to him, that the case would be put over until October 23rd.Following this conversation Mr. Savage advised the president of the plaintiff corporation, who was in Los Angeles, California, of his understanding with the clerk. On the following day, this arrangement was confirmed at a meeting between the clerk, Mr. Savage and Mr. Pugliese.
Later that morning the case which preceded the plaintiff's case on the list was settled. Mr. Savage receivced a telephone call from the court's clerk. He and Mr. Pugliese went to open court presided over by the Chief Judge. They were told that if some other case could not be found to be assigned to the visiting judge plaintiff's case would have to go on. Evidently no other case could be found. The presiding judge told the clerk and the lawyers that the administration of the list was the clerk's business. But he evidently overruled the clerk in the arrangement whereby this case was to go over for some ten days.
In the meantime, Mr. Savage had reached his witness in Los Angeles and directed him to get back immediately. He received a wire from the witness stating he was taking the first plane to Pittsburgh. This plane, had it been on time, would have brought him into Pittsburgh at 9:55 A.M. on October 13th.
In the meantime, on the afternoon before, the case having been assigned to the visiting judge, counsel were directed to impanel a jury which they did. Mr. Savage begged off from making an opening statement saying that his witness was on the way and would be on hand the following morning. When the following morning came, the witness was late because his plane was delayed. Mr. Savage had no opening statement to make because he did not know the case and had not seen the witness. He could neither open nor proceed after opening. The judge suggested that opposing counsel move for dismissal with prejudice. The motion was made and granted. He suggested that Mr. Savage move for dismissal of the counterclaim with prejudice and that was done. That motion too was granted. The judgment was entered and the plaintiff's motion for setting aside the judgment and reconsideration was denied eight months later.*fn3
The above recited facts are all supported by affidavit. The colloquies between judge and counsel appear, of course, as part of the stenographic record of the proceedings. We have no reason to disbelieve statements of fact about the case made to ...