Practice, Civil, Dismissal for lack of prosecution. Superior Court. Rules of Court.
If, under Rule 60 of the Superior Court, which provides for a calling of the civil docket after notice to parties and that "all suits which have remained without action for two years may be dismissed," such a suit is called and by order of the presiding judge the docket entry is made, "April sitting or dismissed," there is no absolute dismissal of the suit, and, if no further order of dismissal is made and the parties by mutual consent with the approval of the court postpone the trial of the case beyond the April sitting, the case remains pending during such postponements.
BRALEY, J.
The order entered at the calling of the docket was provisional, that if not tried at the next April sitting the case should be dismissed. It appears from the memorandum of decision, which is conclusive as to the facts, that although put on the trial list, yet when reached the case was postponed by the parties, and, not having been disposed of, it was placed on the trial list for the following November sitting. When reached at this sitting after having been twice continued to a day certain by agreement of parties and with the approval of the court, the plaintiff recovered a verdict.
The defendant contends, that under the order of dismissal and Rule 23 of the Superior Court the case went to judgment on the first Monday of July, 1911. Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108. But the dismissal was not absolute, and with the approval of the court the parties treated the case as still pending from sitting to sitting. The order of dismissal consequently did not become automatically operative, and, as the presiding judge at the request of the plaintiff could order the case tried, no error of law is shown. Karrick v. Wetmore, 210 Mass. 578.
Exceptions overruled.