Perrin v. Resleure

NOURSE, P. J. Defendants moved to dismiss this action on several grounds among which were that the cause had not been brought to trial within five years after complaint filed, and no written stipulation for a continuance had been given; that no summons had been served on the corporation; and that the delay had been deliberate to postpone the trial until after the death of two important witnesses, one of whom was the real party in interest. The plaintiff appeals from the order granting a dismissal as to all defendants.

On September 14, 1940, plaintiff filed suit as a stockholder in the Perrin Properties Inc. (alleging that Perrin Properties had refused to do so) against the corporation, Helen Resleure individually, and as executrix of the estate of J. F. Resleure, Walter Vivell, and Victor Pinckney. On October 22, 1941, plaintiff filed his first amended complaint against the same defendants. William P. Hubbard and F. Walter French were his attorneys of record. Helen Resleure filed her answer on June 10, 1942. Attorneys Ralph McGee and T. P. Wittschen were attorneys of record for Helen Resleure in both her capacities. Defendant Vivell filed his answer on April 6, 1944. The attorneys of record were Single, Bryant, Cook and Herring-ton, and L. Walter Vivell in pro. per., and as counsel.

On January 2, 1946, Vivell and Helen Resleure filed separate motions to dismiss on the grounds of lack of prosecution.

Attorney William A. White filed an affidavit in which he stated that plaintiff consulted him in September, 1944, and stated to him that his former attorney (F. Walter French) was in the armed forces and was unable to act for him. White was then substituted as attorney for plaintiff. White called [410]one of the attorneys for Vi veil who orally stipulated that if White would not bring the case to trial no motion to dismiss would be made. White then wrote counsel for Resleure and was told that one of her attorneys was ill and White’s letter would have his consideration when he returned to his office. No effort was made by plaintiff to contact any of the other counsel for the respective defendants—all of whom were available throughout the entire period of delay.

Plaintiff filed an affidavit in which he stated that his attorney, French, went into the service, but he did not explain why his other counsel of record was not able to conduct the proceedings. He does not disclose why no effort was made to contact Vivell who was a practicing attorney who appeared both as counsel and in propria persona.