304 F2d 524 Choy v. Butler's Inc

304 F.2d 524

K. H. CHOY, Appellant,
v.
BUTLER'S, INC., a Corporation and Clifford Marks, Appellees.

No. 17617.

United States Court of Appeals Ninth Circuit.

May 18, 1962.

Rehearing Denied July 30, 1962.

J. Frank McLaughlin, Honolulu, Hawaii, and Finton J. Phelan, Jr., Agana, Guam, for appellant.

John A. Bohn, Charles J. Williams, Benicia, Cal., Arriola, Bohn & Gayle, Agana, Guam, for appellee.

Before BARNES, JERTBERG and MERRILL, Circuit Judges.

PER CURIAM.

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1

The sole question presented is whether or not the district court abused its discretion in entering a conditional order of dismissal after hearing from both parties in open court upon a call of the calendar. Appellant agreed to the entry of the order which he now attacks on this appeal. For a period of ninety days he could have restored his case to activity by certifying he was ready for trial. If he was not ready, he could have, before the ninety day period expired, regularly and properly moved for an extension of time. He did neither, but allowed the ninety days to elapse. Through his own inaction alone, and for no other reason, appellant permitted the order of dismissal to become final. Under these circumstances, appellant has failed to sustain the burden of showing an abuse of discretion on the part of the trial court.

2

We need not, and do not conclude, that the failure to seek relief within the required time was wilful. But because it was not wilful does not show it was inadvertent or excusable, nor does it establish there is merit in appellant's appeal to the court for judicial relief.

3

Were we to grant relief to petitioner under the factual circumstances herein existing, the rules of court would become a nullity, and of no aid in the orderly administration of justice.

4

The judgment and order of the district court dismissing the cause of action are affirmed.