Fidelity Philadelphia Trust Company v. Pioche Mines Consolidated, Inc.

This appeal involves a counterclaim filed by appellant, Pioche, against appellee, Fidelity, which was originally filed in 1940 and has been pending in its final form since 1956. That counterclaim was dismissed by order of the district court, and it is from that order that this appeal arises.

Fidelity filed their first motion to dismiss the counterclaim November 1, 1960 alleging lack of prosecution as four and one-half years had passed since the filing of the final form of counterclaim. That motion was denied on June 5, 1961. A pretrial conference was held the next day at which time the matter was set for trial to commence December 4, 1961. That date was re-set four times with the last date being vacated on August 29,1962 at the request of Pioche. It has never been re-set since. (The complaint has long since been dismissed and the only issue to be tried was the counterclaim.)

Fidelity filed their second motion to dismiss for lack of prosecution on June 18, 1974. That motion was served on certain counsel and officers of Pioche, but was not served on their counsel of record. The court below granted that motion on October 25, 1974, but set that order aside on August 28, 1975 so that…