Colorado Eastern Ry. Co. v. Union Pac. Ry. Co.

94 F. 312, 36 C.C.A. 263, 1899 U.S. App. LEXIS 2354

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 10, 1899
• Docket: No. 1,121
• Status: Published

Opinion

CALDWELL, Circuit Judge

(after stating the facts). The defendant in error moves to dismiss the writ of error upon the ground that the dismissal of a cause for want of prosecution is not subject to review by an appellate court. The motion must be denied. An order of dismissal for want of prosecution and a judgment for costs against plaintiff lu a final judgment from which an appeal will lie. Tunnel Co. v. Pell, 4 Colo. 184; Wood v. Coman, 56 Ala. 283; Dowling v. Polack, 18 Cal. 626. To constitute a Anal judgment, it is not essential that it should be a bar to another suit. It is only when a suit is determined on its merits that it is a bar to ánother action. Hughes v. U. S., 4 Wall. 232. The court below has promulgated the following rule:

“All canses at law and in equity in which no order or progress has heen made and entered of record within one year last past shall be dismissed for want of prosecution, unless upon cause shown during the first twenty days of the May term the court shall otherwise order.”

This is a very proper rule, but, in the absence of such a rule, every court has the power to dismiss a cause for want of prosecution. It is a matter of judicial discretion, and is frequently exercised. Ashley v. May, 5 Ark. 408; Peralta v. Marica, 3 Cal. 185. There is no ground whatever for claiming that this discretion was abused or arbitrarily exercised in this case. Nearly six years had elapsed since the filing of the original petition without any steps being taken by the plain!iff- to bring the cause to trial. The contention that a pro-’ ceeding for condemnation is not a suit is fully, disposed of by the decision in Boom Co. v. Patterson, 98 U. S. 403, where it is held that it is a suit and removable to the federal courts when the necessary diverse citizenship exists, or, as in the case at bar, one of the parties is a federal corporation. The judgment of the circuit court is affirmed.