Scholl v. Felmont Oil Corp., 327 F.2d 697 (6th Cir. 1964). · Go Syfert
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Scholl v. Felmont Oil Corp., 327 F.2d 697 (6th Cir. 1964). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 2000 · …there was no requirement that the appellant agree to the entry of this order. it was an alternative available to appellant in lieu of proceeding with the trial. at p. 700 ✓
56 citation events (22 in the last 25 years) across 15 distinct courts.
Strongest positive: Stephen E. Duffy Sue Ann Duffy v. Ford Motor Company (ca6, 2000-06-27)
Treatment trajectory · 1964 → 2026 · click a year to view as-of
1964 1995 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Stephen E. Duffy Sue Ann Duffy v. Ford Motor Company (6×) also: Cited as authority (rule), Cited "see"
6th Cir. · 2000 · quote attribution · 2 verbatim quotes · confidence high
there was no requirement that the appellant agree to the entry of this order. it was an alternative available to appellant in lieu of proceeding with the trial.
discussed Cited as authority (rule) Stewart v. Gabriel Brothers, Inc.
E.D. Tenn. · 2025 · confidence medium
“The Court may have the authority to impose this condition[.]” King, 2020 WL 8838089 , at *5 (citing Scholl v. Felmont Oil Corp., 327 F.2d 697, 699 (6th Cir. 1964)); see also Seaton v. Black & Decker (U.S.), Inc., No. 2:20-CV-124, 2021 WL 1739822 , at *3 (E.D.
cited Cited as authority (rule) Ballentine Express Corp. v. EAN Holdings, LLC
6th Cir. · 2024 · confidence medium
Corp. v. Larson, 930 F.3d 759, 766 (6th Cir. 2019) (quoting Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir. 1964)).
discussed Cited as authority (rule) United States v. Dale Allen Fraley
6th Cir. · 2023 · confidence medium
See United States v. Sawyers, 902 F.2d 1217, 1219 (6th Cir. 1990) (finding no abuse of discretion for denial of continuance where defendant did not show any probability that witness would be able to testify within a reasonable time); United States v. Phillips, - 10 - No. 22-5057, United States v. Fraley 630 F.2d 1138, 1144 (6th Cir. 1980) (finding no abuse of discretion for denial of continuance where witness became mentally incompetent since the court “was confronted with a very indefinite prognosis, with no firm indication as to when, if ever, [potential witness] would be competent to be a…
discussed Cited as authority (rule) Dearth v. Mukasey
6th Cir. · 2008 · confidence medium
See, e.g., Duffy v. Ford Motor Co., 218 F.3d 623, 626 (6th Cir.2000); Laczay v. Ross Adhesives, 855 F.2d 351, 351 (6th Cir.1988); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir.1976); Kelly v. Great Atl. & Pac.
cited Cited as authority (rule) Ruth v. Purdue Pharma Co.
S.D.N.Y. · 2004 · confidence medium
Co., 668 F.2d 369, 370 (8th Cir.1981); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964).
discussed Cited as authority (rule) Bogosian v. Woloohojian Realty Corp.
1st Cir. · 2003 · confidence medium
See Amarin Plastics, Inc., 946 F.2d at 152-53 (noting absence of any reasonable indication that party would ever improve enough to appear at trial); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964) (affirming denial of continuance absent any medical assurances that witness would ever be available to testify at trial).
discussed Cited as authority (rule) Elizabeth v. Bogosian, Plaintiff-Appellant/cross-Appellee v. Woloohojian Realty Corporation, Defendant-Appellee/cross-Appellant, James E. Woloohojian, Harry J. Woloohojian, Pezzuco Construction Co., Inc., Cummings & Lockwood, and Tillinghast, Licht & Semonoff, Elizabeth v. Bogosian, Plaintiff-Appellant/cross-Appellee v. Woloohojian Realty Corporation, Defendant-Appellee/cross-Appellant, James E. Woloohojian, Harry J. Woloohojian, Pezzuco Construction Co., Inc., Cummings & Lockwood, and Tillinghast, Licht & Semonoff, Elizabeth v. Bogosian, Plaintiff-Appellant/cross-Appellee v. Woloohojian Realty Corporation, Defendant-Appellee/cross-Appellant, James E. Woloohojian, Harry J. Woloohojian, Pezzuco Construction Co., Inc., Cummings & Lockwood, and Tillinghast, Licht & Semonoff
1st Cir. · 2003 · confidence medium
See Amarin Plastics, Inc., 946 F.2d at 152-53 (noting absence of any reasonable indication that party would ever improve enough to appear at trial); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964) (affirming denial of continuance absent any medical assurances that witness would ever be available to testify at trial). 28 Third, trial counsel for Bogosian advised the district court at the September 2000 hearing that he intended to substitute a "limited liability" family corporation as the lone plaintiff, in order to minimize Bogosian's continued involvement and participation in the…
discussed Cited as authority (rule) RMD Concessions, L.L.C. v. Westfield Corp.
E.D. Va. · 2000 · confidence medium
Sept. 10, 1984) (finding that defendant was not entitled to condition that case be filed in Indiana courts, as "plaintiff is entitled to dismiss this suit and to refile in the state court of his choice”), with Pittsburgh Jaycees, 89 F.R.D. 166, 168 (W.D.Pa. 1981) (plaintiffs were required as a condition of voluntary dismissal to refile the suit, if at all, in the same court, after litigation had proceeded in that court for a significant time, to “eliminate duplicitous work”), and Scholl v. Felmont Oil Corp., 327 F.2d 697, 699 (6th Cir.1964) (finding that, where plaintiff sought voluntary…
cited Cited as authority (rule) American Water Development, Inc. v. City of Alamosa
Colo. · 1994 · confidence medium
Corp. v. Richard Carylon Co., 904 F.2d 298, 300-01 (5th Cir.1990); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964).
discussed Cited as authority (rule) Mortgage Guaranty Insurance Corporation v. The Richard Carlyon Company, Thomas E. Longer and Cyndi Longer
5th Cir. · 1990 · confidence medium
Gravatt v. Columbia University, 845 F.2d 54, 57 (2d Cir.1988); Scam Instrument Corp. v. Control Data Cory., 458 F.2d 885, 889 (7th Cir.1972); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964); 9 C.
discussed Cited as authority (rule) Anchor Pointe Boat-A-Minium Association, Inc. v. Vern Meinke, Meinke Marina West, and the United States of America
6th Cir. · 1988 · confidence medium
Management Investors v. United Mine Workers, 610 F.2d 384, 393 (6th Cir.1979) (“The general rule is to be that a plaintiff who has requested and been granted or agreed to a voluntary dismissal of his action without prejudice cannot maintain or prosecute an appeal from the order of dismissal.”); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964) (same).
cited Cited as authority (rule) Unioil, Inc. v. Hutton & Co., Inc.
9th Cir. · 1987 · confidence medium
Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964); see also 9 C.
cited Cited as authority (rule) Unioil, Inc. v. E.F. Hutton & Co.
9th Cir. · 1986 · confidence medium
Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964); see also 9 C.
discussed Cited as authority (rule) Sami Rebekah Lau, on Behalf of Herself and All Other Similarly Situated v. Glendora Unified School District
9th Cir. · 1986 · confidence medium
Wright & A. Miller, Federal Practice and Procedure Sec. 2366, at 177-81 (1971); see Scam Instrument Corp. v. Control Data Corp., 458 F.2d 885, 889 (7th Cir.1972) (dicta); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964).
discussed Cited as authority (rule) Antowyn Cauley v. John Wilson
7th Cir. · 1985 · confidence medium
Louis Southwestern Railway, 668 F.2d 369, 370 (8th Cir.1981), cert. denied, 456 U.S. 946 , 102 S.Ct. 2013 , 72 L.Ed.2d 469 (1982); LeCompte, 528 F.2d at 603 ; Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir.1964).
discussed Cited as authority (rule) Curlee Bowers v. St. Louis Southwestern Railway Company, a Corporation
8th Cir. · 1981 · signal: cf. · confidence medium
Cf. Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir. 1964) (dismissal conditioned in part upon requirement that suit, if refiled, be refiled in same court was not “unreasonable”).
discussed Cited as authority (rule) William David Curtis v. United Transportation Union, St. Louis San Francisco Railway Company
8th Cir. · 1981 · confidence medium
Ordinarily, though, plaintiff cannot appeal therefrom, since it does not qualify as an involuntary adverse judgment so far as the plaintiff is concerned.” 5 Moore’s Federal Practice ¶41.05[3], at 1068 (2d ed. 1975), citing Scholl v. Felmont Oil Corp., 327 F.2d 697, 700-701 (6th Cir. 1964); accord, 9 Wright & Miller, Federal Practice & Procedure: Civil § 2376, at 247 (1971).
discussed Cited as authority (rule) Management Investors v. United Mine Workers
6th Cir. · 1979 · confidence medium
Le Compte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir. 1964); Kelly v. Great Atlantic & Pacific Tea Company, 86 F.2d 296 (4th Cir. 1936); Annot. 23, A.L.R.2d § 2, p. 664; 5 Moore’s Federal Practice ¶ 41.05[3], at 41-79 (2d ed. 1978).
discussed Cited as authority (rule) Management Investors v. United Mine Workers Of America
6th Cir. · 1979 · confidence medium
Le Compte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir. 1964); Kelly v. Great Atlantic & Pacific Tea Company, 86 F.2d 296 (4th Cir. 1936); Annot. 23, A.L.R.2d § 2, p. 664; 5 Moore's Federal Practice P 41.05(3), at 41-79 (2d ed. 1978).
examined Cited as authority (rule) Donald Yoffe v. Keller Industries, Inc., a Corporation and Henry A. Keller and Norman S. Edelcup, Individuals (3×) also: Cited "see", Cited "see, e.g."
5th Cir. · 1978 · confidence medium
Ordinarily, though, plaintiff cannot appeal therefrom, since it does not qualify as an involuntary adverse judgment so far as the plaintiff is concerned.” 5 Moore’s Federal Practice ¶ 41.05[3], at 1068 (2d ed. 1975), citing Scholl v. Felmont Oil Corp., 327 F.2d 697, 700-701 (6th Cir. 1964); accord, 9 Wright & Miller, Federal Practice & Procedure: Civil § 2376, at 247 (1971). 528 F.2d at 603; see also Alvarado v. Maritime Overseas Corp., 5 Cir., 1976, 528 F.2d 605 .
discussed Cited as authority (rule) Jackson v. Sentry Indemnity Co.
E.D. Tenn. · 1977 · confidence medium
Under such circumstances, the Court in its discretion, Pingatore v. Montgomery Ward & Co., C.A.6th (1969), 419 F.2d 1138 , 1141[1], certiorari denied (1970), 398 U.S. 928 , 90 S.Ct. 1818 , 26 L.Ed.2d 90 ; Scholl v. Felmont Oil Corp., C.A.6th (1964), 327 F.2d 697, 700 [2], once again hereby DENIES the defendant’s motion for a continuance of the trial hereof.
discussed Cited as authority (rule) Milton Lecompte v. Mr. Chip, Inc.
5th Cir. · 1976 · confidence medium
Ordinarily, though, plaintiff cannot appeal therefrom, since it does not qualify as an involuntary adverse judgment so far as the plaintiff is concerned.” 5 Moore’s Federal Practice H41.05[3], at 1068 (2d ed. 1975), citing Scholl v. Felmont Oil Corp., 327 F.2d 697, 700-701 (6th Cir. 1964); accord, 9 Wright & Miller, Federal Practice & Procedure: Civil § 2376, at 247 (1971).
discussed Cited "see" Turner Casey v. Catholic Diocese of Memphis
W.D. Tenn. · 2025 · signal: see · confidence high
See Scholl v. Felmont Oil Corp., 327 F.2d 697 , 699– 701 (6th Cir. 1964) (upholding district court’s imposition of condition that the case be refiled only in federal court where “[t]he difficulties confronting [the plaintiff] in proceeding with the trial were of his own making” and the plaintiff accepted the condition).
cited Cited "see" Romanov v. State Farm Mutual Automobile Insurance Company
E.D. Tenn. · 2023 · signal: see · confidence high
See Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir. 1964).
discussed Cited "see" James W. Perkins, Judith Lynn Perkins v. American Electric Power Fuel Supply, Inc. Indiana Michigan Power Company, Inc., River Transportation Division (2×)
6th Cir. · 2001 · signal: see · confidence high
See Scholl v. Felmont Oil Corp., 327 F.2d 697, 700 (6th Cir. 1964). 50 Plaintiff filed his complaint on January 21, 1998.
cited Cited "see" Raceway Properties, Inc. v. Emprise Corporation
6th Cir. · 1980 · signal: see · confidence high
See Scholl v. Felmont Oil Co., 327 F.2d 697 (6th Cir. 1964).
cited Cited "see" Morrissey v. National Maritime Union
S.D.N.Y. · 1975 · signal: see · confidence high
See Scholl v. Felmont Oil Corp., 327 F.2d 697 (6th Cir. 1964).
cited Cited "see" Blackburn v. City of Columbus
S.D. Ohio · 1973 · signal: see · confidence high
See Scholl v. Felmont Oil Corporation, 327 F.2d 697 (C.A.6 1963); also see 9 Wright & Miller, Federal Practice and Procedure: Civil § 2366 at 176-177, 183 and cases cited therein.
Retrieving the full opinion text from the archive…
Henry J. Scholl and Sarah Scholl, His Wife, John C. Hunsaker and Evelyn Hunsaker, His Wife, O. C. Scholl and Pauline Scholl, His Wife
v.
Felmont Oil Corporation
15387.
Court of Appeals for the Sixth Circuit.
Feb 22, 1964.
327 F.2d 697
Cited by 1 opinion  |  Published

327 F.2d 697

Henry J. SCHOLL and Sarah Scholl, His Wife, John C. Hunsaker and Evelyn Hunsaker, His Wife, O. C. Scholl and Pauline Scholl, His Wife, Plaintiffs-Appellants,
v.
FELMONT OIL CORPORATION, Defendant-Appellee.

No. 15387.

United States Court of Appeals Sixth Circuit.

February 22, 1964.

Carmol D. Cook, Hartford, Ky., for appellants, Lake & Cook, Hartford Ky., on brief.

Morton J. Holbrook, Owensboro, Ky., for appellee, Ridley M. Sandidge, Owensboro, Ky., on brief; Sandidge, Holbrook, Craig & Hager, Owensboro, Ky., of counsel.

Before MILLER, CECIL and O'SULLIVAN, Circuit Judges.

SHACKELFORD MILLER, Jr., Circuit Judge.

[*~697]1

Appellants, Henry J. Scholl and others, file this action in March 1961 in the state court in Ohio County, Kentucky. The complaint seeks to cancel and set aside the assignment of an interest in an oil and gas leasehold estate covering lands in Ohio County, Kentucky, and to recover damages in the amount of $18,102.16. At the time of the filing of the action Scholl was 72 years of age, and was spending his winters in Florida because of ill health.

2

On March 17, 1961, appellee, Felmont Oil Corporation, removed the action to the United States District Court for the Western District of Kentucky on the ground of diversity of citizenship. It filed its answer to the complaint on March 24, 1961.

3

A pretrial conference was held on August 16, 1961. Neither of the parties being then ready for trial, the case was continued.

4

On December 5, 1961, the Court set a pretrial hearing for December 28, 1961.

5

On December 18, 1961, appellants moved to dismiss without prejudice. Following the pretrial hearing on December 28, 1961, the Court by order of December 30, 1961, overruled the motion to dismiss without prejudice and set the case for trial on February 12, 1962.

6

On January 16, 1962, appellants moved for a continuance on the ground that Scholl was the chief witness on behalf of the appellants and that it would be very injurious to his health to travel from Florida to Kentucky for the trial. On January 25, 1962, an order was entered passing the case for further orders.

7

On August 24, 1962, the case was set for trial on September 17, 1962. The parties were present and ready for trial, but by reason of the fact that the Court had also set another jury case for trial that day, this case was continued by the Court on its own motion.

8

Following a pretrial conference on December 20, 1962, an order was entered on December 26, 1962, setting the case for trial before the Court on February 14, 1963.

9

On February 11, 1963, Scholl's attorney filed a motion for continuance until September term of court on the ground that Scholl was a material and necessary witness and could not, without damage to his health, return from Florida to Kentucky for trial. The motion was supported by the affidavits of two doctors containing one-sentence statements that it would be injurious to Scholl's health to travel to Kentucky at that time, without further detail. The motion was overruled.

[*~698]10

The case was called for trial on February 14, 1963. Scholl was not present. His attorney again moved for a continuance. The Court stated that the motion would be overruled and the case tried. Scholl's attorney, being in the position of having to go to trial without Scholl as a witness, moved to dismiss the action without prejudice. The Court stated that the motion would be overruled and the case tried, but also stated that a dismissal without prejudice would be permitted on the following conditions, namely, that appellants would pay the court costs in the state court action and in the present action, and that in the event the case was refiled, it would be refiled in the same court and the appellants would pay appellee's attorneys a reasonable attorneys' fee, to be passed on by the Court, for services rendered in the present action. As stated in appellants' brief, "Under the circumstances Scholl's attorney reluctantly agreed to such an order of dismissal without prejudice."

11

At the direction of the Court, appellee's attorney submitted an itemized statement claiming the sum of $2,820.52, which the Court examined and found reasonable, without a hearing. However, no objection was taken to the finding, and although appellants are critical of the amount so allowed and make no agreement of record with respect to the allowance, it is not contended on this appeal that the amount is unreasonable.

12

Thereafter, on February 26, 1963, judgment was entered overruling the motion for continuance and dismissing the action without prejudice upon the terms and conditions heretofore stated and fixing the amount of the attorneys' fees at $2,820.52.

13

The present appeal is taken from the order of February 11, 1963, denying appellants' motion for a continuance and from the order of February 26, 1963, dismissing the action without prejudice upon the terms and conditions stated therein.

14

The denial of a motion for a continuance is not a final decision from which an appeal will lie under Section 1291, Title 28, United States Code. Berman v. United States, 302 U.S. 211, 212-213, 58 S.Ct. 164, 82 L.Ed. 204; Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911; Bedgisoff v. Cushman, 12 F.2d 667, 668, C.A.9th. However, the propriety of such an order is subject to review by the Court of Appeals if and when the case is properly before the court on a later appeal from the final decision in the case. Ford Motor Co. v. Busam Motor Sales, 185 F.2d 531, 534, C.A.6th. Accordingly, assuming for the present, but not so holding, that the case is properly before us by reason of the appeal from the order of February 26, 1963, dismissing the action without prejudice upon certain terms and conditions, we will consider the order of February 11, 1963, denying the continuance.

15

The granting or denial of a continuance is a matter within the discretion of the trial judge and will not be reversed on appeal unless there has been a clear abuse of discretion. Isaacs v. United States, 159 U.S. 487, 489, 16 S.Ct. 51, 40 L.Ed. 229; Duisberg v. Markham, 149 F.2d 812, C.A.3rd, cert. denied, 326 U.S. 759, 66 S.Ct. 98, 90 L.Ed. 456; Gross v. Williams, 149 F.2d 84, 86, C.A.8th; Atlantic Greyhound Corporation v. Lauritzen, 182 F.2d 540, 543, C.A.6th.

[*~699]16

The answer in this case was filed on March 24, 1961. At the time of the motion for a continuance the case had been pending for almost two years. Discovery depositions, including one by the defendant of the appellant Scholl, were completed by both parties on April 14, 1961. The trial had been previously continued three times, the continuance on January 25, 1962, having been requested by appellants on substantially the same grounds as was urged in February 1963, more than one year later. In the meantime, appellants had not taken the deposition of Scholl, although he was their principal witness and there was a reasonable probability that he would not be able to come to Kentucky for the trial. The discovery deposition of Scholl taken by the appellee was available. It appears that appellee's counsel had stipulated with appellants' counsel such facts as documents and court records and other facts indicated by appellants' counsel as being material, with the exception, of course, of admitting Scholl's claim of fraud, which Scholl apparently hoped to substantiate by his own testimony. The affidavits of the two doctors in support of the motion for a continuance did not indicate when, if ever, Scholl would be able to come to Kentucky for a trial. We find no abuse of discretion in denying the motion for another continuance.

[*700]17

Turning now to the question of whether the order of dismissal without prejudice is an appealable order, we are of the opinion that it is not an order or judgment from which an appeal will lie, in that it was agreed to by the appellant. The appellant moved for a dismissal without prejudice. The District Judge made it clear that the motion would be overruled and the case tried unless appellants agreed to a dismissal without prejudice conditional upon the terms specified. An order dismissing an action without prejudice upon plaintiff's instance, after answer has been filed "upon such terms and conditions as the court deems proper" is authorized under Rule 41(a) (2), Rules of Civil Procedure. We do not consider the terms and conditions imposed by the Court to be unreasonable. Barnett v. Terminal R. Ass'n of St. Louis, 200 F.2d 893, 894, C.A.8th, cert. denied, 345 U.S. 956, 73 S.Ct. 938, 97 L.Ed. 1377; Sahutsky v. National Dairy Products Corp., 184 F.Supp. 68, 70, E.D.Pa.; Eager v. Kain, 158 F.Supp. 222, E.D.Tenn.; Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 108 C.A.2nd, cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383. There was no requirement that the appellant agree to the entry of this order. It was an alternative available to appellant in lieu of proceeding with the trial. The difficulties confronting him in proceeding with the trial were of his own making. In order to extricate himself from a very unfavorable situation of his own making, he "reluctantly agreed" to the proposed order, which by reason of such agreement was thereafter entered. We do not consider this an involuntary adverse judgment, from which an appeal will lie. United States v. Babbitt, 104 U.S. 767, 26 L.Ed. 921; Taylor v. Slider, 185 Ky. 756, 215 S.W. 827; Francisco v. Chicago & A. R. Co., 149 F. 354, C.A.8th; Kelly v. Great Atlantic & Pacific Tea Co., 86 F. 2d 296, C.A.4th.

18

The appeal is dismissed.