Opinion
Phoebe P. Nelms brought action against the Baltimore and Ohio Railroad Company, a corporation, to recover for injuries. The action was dismissed on stipulation of counsel. Thereafter the plaintiff made a motion for an order setting aside and vacating the dismissal. The District Court, Freed, J., held that dismissal should be vacated.
Motion granted.
Arthur L. Limbach, New Philadelphia, Parker Fulton, Cleveland, Herman E. Rabe, Richard A. Chenoweth, Akron, for plaintiff.
Dwight B. Buss, Baker, Hostetler & Patterson, Cleveland, for defendant.
FREED, District Judge.
Plaintiff's action for personal injuries was dismissed on stipulation of counsel, November 16, 1949. This motion seeks an order under Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., setting aside and vacating the dismissal.
By affidavit, the plaintiff asserts that the authorization for the dismissal entry was given counsel by her husband, now deceased. She states that at no time was the husband constituted her agent, in fact or by implication, and that consequently the dismissal, entered without her knowledge or consent, deprives her of her ‘ day in court.’ In addition, it is suggested by plaintiff that her husband, at the time of dismissal, was not mentally competent.
In answer to the charge that the dismissal was entered without authority of the plaintiff, defendant has made no demonstration which would point to a different factual situation. Though counsel who signed the stipulation for the plaintiff is of highest reputation and integrity, this Court can only conclude that the entry was made without authority and should be set aside and vacated.
The motion will be granted.