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Zitomer v. Holdsworth

decided: October 8, 1971.

FRANCES ZITOMER AND NATHAN ZITOMER, APPELLANTS,
v.
FRANK HOLDSWORTH, ALSO KNOWN AS FRED M. HOLDSWORTH



Van Dusen, Aldisert and Gibbons, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

Plaintiff appeals from a December 13, 1968 order dismissing for want of timely prosecution a complaint filed some nine years earlier.*fn1 Defendant was properly served, an appearance was entered for him, and an answer was filed. Defense counsel later obtained leave to withdraw after the case was placed on the jury trial list.

When the case was called for trial four months later, on October 3, 1962, plaintiff successfully moved for a postponement on the ground that defendant was on active duty in the military service. The case was placed on the "deferred list" of the district court where it remained for six years, without any effort by the court or plaintiff to relist the action for trial.*fn2

Appellant contends that the Soldiers' and Sailors' Relief Act of 1940, 50 U.S.C. App. § 525,*fn3 justifies his failure to prosecute the action. This provision affords him no relief; it simply tolls the statute of limitations during the period of military service and has no applicability to an action duly filed and served within the applicable statute of limitations. Moreover, no other provisions of the Act justify plaintiff's dereliction. The record discloses neither the period of active service of the defendant, nor any attempt by defendant to avail himself of the Act's provisions, 50 U.S.C. App. § 521,*fn4 nor does it disclose any attempt by appellant at a default judgment either precluded by or in conformity with 50 U.S.C. App. § 520.*fn5

Plaintiff had ample opportunities throughout the years to list the case for trial. At the time of the invocation of the rule to show cause why the action should not be dismissed, he could have obtained a trial date. His unwillingness to prosecute this complaint justifies termination of the case.

The judgment of the district court will ...


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