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JERRY WAYNE HARRIS AND RAMONA HARRIS v. FORT WORTH STEEL AND MACHINERY COMPANY

SEPTEMBER 21, 1983

JERRY WAYNE HARRIS AND RAMONA HARRIS
v.
FORT WORTH STEEL AND MACHINERY COMPANY, INC., ET AL.



BEFORE WALKER, ROY NOBLE LEE and HAWKINS

ROY NOBLE LEE, JUSTICE, FOR THE COURT:

This appeal is from a final judgment of the Circuit Court, Second Judicial District of Jones County, Honorable James D. Hester, presiding, dismissing the suit of Jerry Wayne Harris and Ramona Harris for failure to prosecute the action. Subsequent to the judgment of dismissal, the Harrises filed a motion to vacate that judgment, which was overruled by the lower court. At the time of the dismissal order, the suit was pending against Fort Worth Steel and Machinery Company, Inc. [Fort Worth] and Munford Engineering Company [Munford]. The sole question on this appeal is whether or not the lower court abused its discretion in dismissing the case for lack of prosecution.

The declaration was filed August 30, 1974, and it charged negligence against Fort Worth and Munford in the design and construction of an auger conveyor in the ice room of Sanderson Farms, Inc. Jerry Wayne Harris was injured and sustained the loss of his left leg. Subsequently, five continuances were entered by the court at the request of one or more of the parties, or by agreement. Each order was signed by the trial judge and appeared to be a form order which was entered on the minutes. A copy of same follows:

 ORDER FOR CONTINUANCE

 The Court in pre-trial conference having determined that all pre-trial matters have not been presented and decided, this cause is hereby continued.

 SO ORDERED, this the 31st day of October, 1979.

 Interrogatories were propounded and depositions were taken. A number of pretrial conferences were held. A pretrial conference was held on July 15, 1981, and counsel for the appellants failed to appear. Thereupon, the trial judge telephoned the office of local counsel for appellants and was informed by his secretary that counsel was not available and could not be contacted. Motion was filed by the appellees to dismiss the suit for lack of prosecution, the motion was sustained and the order entered on July 15, 1981. The order recited:

 (1) Plaintiffs were unable to answer interrogatories as to modifications or additions which contributed to the alleged defective design, but agreed to furnish same when the information was received.

 (2) Plaintiffs named an expert, A. J. Scardino, Jr., but only stated in general terms what he was expected to testify, and the plaintiffs stated the information would be furnished subsequently.

 (3) That none of the mentioned information had been furnished by the plaintiffs.

 (4) That the defendants had been diligent in completing discovery by way of depositions and written interrogatories.

 (5) That on one or more occasions, plaintiffs' attorneys had not appeared at pretrial hearings set by the court and did not appear at the pretrial hearing on the date of the order.

 (6) That at the pretrial hearing in November, 1980, the Court announced that unless the case was tried at the January, 1981, term it would be dismissed.

 (7) That there had been a substantial failure to prosecute the case as required by the rules of the Court, and ...


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