459 F2d 56 Maxey v. Citizens National Bank of Lubbock Texas

459 F.2d 56

Homer G. MAXEY, Plaintiff-Appellant,

No. 72-1160 Summary Calendar.1

United States Court of Appeals,
Fifth Circuit.

April 18, 1972.

L. Wayne Kreis, Harold D. Hammett, Henry W. Simon, Jr., Fort Worth, Tex., Kenneth Bowlin, Lubbock, Tex., Simon & Simon, Henry W. Simon, Fort Worth, Tex., for plaintiff-appellant.

R. L. Davidson, Jr., Tulsa, Okl., Charles B. Jones, Key, Carr & Clark, Bernard P. Evans, Lubbock, Tex., M. Ward Bailey, James M. O'Leary, Odessa, Tex., Evans, Pharr, Trout & Jones, Lubbock, Tex., Shafer, Gilliland, Davis, Bunton & McCollum, Odessa, Tex., for defendants-appellees.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.


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This is an appeal from an order dismissing plaintiff's suit by the United States District Court for the Northern District of Texas, for want of prosecution. Plaintiff filed his suit on March 15, 1966 in the United States District Court for the Northern District of Oklahoma. The suit was transferred to the United States District Court for the Northern District of Texas, Lubbock Division. A suit involving the same parties and issues was also filed in the District Court of Lubbock County, Texas. The Federal suit lay dormant for more than four years while the parties pursued their trials and appeals in the State courts.


Pursuant to show cause order, of which all attorneys were duly notified on September 28, 1970, and to which none responded, the Federal court suit was dismissed for want of prosecution on November 2, 1970. On October 19, 1971, more than a year after the show cause order was served and just short of a year after the suit was dismissed, plaintiff moved to reinstate the Federal court suit. The motion to reinstate was denied, hence this appeal.


The dismissal of the dormant suit was pursuant to adequate notice. We are unable to perceive from the record or the briefs that the court in any way abused its discretion in the dismissal of the suit or the denial of the motion to reinstate.


The judgment of the district court is affirmed.


Rule 18, 5 Cir.; See Isbell Enterprises, Inc. c. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409