Neece v. Neece

541 So. 2d 572, 1989 Ala. Civ. App. LEXIS 90, 1989 WL 26064

• Court: Court of Civil Appeals of Alabama
• Decided: March 22, 1989
• Docket: Civ. 6833
• Status: Published

Opinion

ROBERTSON, Judge.

This is an appeal from a dismissal without prejudice for lack of prosecution.

Appellant/husband filed a pro se petition for divorce in Mobile County alleging complete incompatibility of temperament. He then filed a motion to waive his personal appearance at the hearing. The motion was subsequently denied. The case was set for trial on its merits, and, plaintiff not appearing, the court dismissed the cause, without prejudice, for lack of prosecution. Appellant’s post-trial motions were subsequently denied. He appeals. We affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in dismissing the complaint for failure to prosecute.

The dismissal of one’s case for want of prosecution is a matter that rests soundly within the discretion of the trial court. Bowman v. Slade, 501 So.2d 1236 (Ala.Civ.App.1987).

It is undisputed that the reason the appellant did not appear is because of his incarceration in an Alabama state prison. This court has held that incarceration alone is no excuse to avoid dismissal for want of prosecution. Whitehead v. Baranco Color Labs, Inc., 355 So.2d 376 (Ala.Civ.App.1978).

In the instant case, the appellant had legal vehicles available to assure his testimony was before the trial court. After his motion to waive personal appearance was denied, the appellant made no effort to preserve his testimony for use at trial as provided under Rules 30, 31, and 32, A.R. Civ.P. The rules apply equally to members of the bar and others. Hines v. City of Mobile, 480 So.2d 1203 (Ala.1985).

The facts and circumstances of this case, when viewed with the applicable law, show that the trial court did not abuse its discretion in dismissing this cause for lack of prosecution and must be affirmed.

AFFIRMED.

HOLMES, P.J., and INGRAM, J., concur.