William R. Russell v. William Cunningham

This is an appeal from the denial of a motion for either a continuance or a dismissal without prejudice and the entry of a dismissal with prejudice for failure to prosecute * by the District Court of Guam. Appellant contends that this action constituted a “gross abuse of discretion” warranting reversal, that the rule of the District Court of Guam requiring a bond to secure costs from non-resident plaintiffs is void, and that the District Court could not award attorneys' fees as costs.

Appellant, a seaman employed by the Military Sea Transport Service (MSTS), lost an eye on Guam when he was on shore leave there. His complaint alleges that he was hit in the eye by appellee shattering his glasses. Most of the witnesses were seamen or officers of MSTS ships, and, like appellant, not residents of Guam. Appellant, who is married and has five children, has suffered a large loss of income as a result of the injury.

Actions have been filed both in Guam and California, putting appellee to the burden of preparing a defense in both places. The record indicates that appellee has had the financial burden of his attorneys’ fees in both suits and the costs of several depositions.

The…