Standard National Insurance Company and Fidelity & Guaranty Insurance Underwriters, Inc., Appellants, v. Mrs. Rosie M. Bayless et Vir, Appellee, 272 F.2d 185 (5th Cir. 1959)

Annotate this Case
U.S. Court of Appeals for the Fifth Circuit - 272 F.2d 185 (5th Cir. 1959) November 25, 1959

J. H. Painter, Jr., Houston, Tex., for appellants.

Albert P. Jones, Houston, Tex., Cam Harrell, Conroe, Tex., for appellee.

Before HUTCHESON, JONES and WISDOM, Circuit Judges.


Rosie M. Bayless and her husband S. R. Bayless filed suit in February, 1958, against the Standard National Insurance Company and Fidelity & Guaranty Insurance Underwriters, Inc., on two policies of fire insurance of $7,000 each. The suit was filed in the State District Court of Montgomery County, Texas. In March, 1958 the cause was removed to the United States District Court for the Southern District of Texas. February 10, 1959, the plaintiffs moved to dismiss the case without prejudice. On that same day the insurance companies filed notice of their intention to take depositions. February 20, 1959, the Court granted the motion to dismiss attaching the condition that the plaintiffs pay costs, attorney's fees, and expenses. Mr. and Mrs. Bayless then filed two new suits in the State Court, one against each company. This appeal is from the judgment dismissing the suit without prejudice. Appellants contend that the district judge abused his discretion in granting the motion to dismiss over defendants timely objections, after the cause had been pending over one year and the purpose of the dismissal was to attain a supposed tactical advantage.

Under Fed.Rules Civ.Proc. rule 41(a) (2), 28 U.S.C.A., the district judge acted well within his discretion in permitting this dismissal of the suit without prejudice. Cone v. West Virginia Pulp & Paper Co., 1947, 330 U.S. 212, 67 S. Ct. 752, 91 L. Ed. 849; Southern Railway Company v. Chapman, 4 Cir., 1957, 235 F.2d 43; New York, Chicago & St. Louis Railroad Company v. Vardaman, 8 Cir., 1950, 181 F.2d 769.

The judgment is