Before KNOCH, CASTLE and KILEY, Circuit Judges.
In August of 1955, Carlos Esteva, Jr., plaintiff-appellant, commenced this diversity action in the District Court against Browne-Vintners Co., Inc. and certain other defendants*fn1 to recover damages in the sum of $1,000,000.00 alleged to represent "unjust enrichment" obtained by the defendants through a conspiracy by which the plaintiff was induced to furnish certain information, advice, formulas and processes in reliance upon representations made to him with respect to benefits and positions he was to receive in return but of which he was deprived as a part of the conspiracy. On March 13, 1962, the District Court dismissed the action, with prejudice, for want of prosecution. The plaintiff appealed.
From the contentions advanced by plaintiff it appears that the basic contested issues which emerge from his appeal are (1) whether the District Court abused its discretion in entering the judgment order of dismissal, and (2) whether the court erred by entering such a final judgment without making and entering express findings of fact and conclusions of law.
The dismissal action was taken by the court sua sponte after the trial judge had waited an hour beyond the appointed time for plaintiff and his counsel to appear on the second day of the trial. In taking such action the trial judge pointed out that on numerous other occasions the case had been continued because of inability of the plaintiff to be ready for trial and that at all times counsel for the plaintiff had been late.
The record discloses that about thirty days prior to March 12, 1962, the cause was set for trial*fn2 on that date with the explicit understanding that the case would be tried at that time. On the call of the case, March 12, 1962, both sides waived opening statements. Counsel for the plaintiff requested and was granted a short recess to complete the marking of certain exhibits. Plaintiff's counsel then proceeded to offer in evidence as plaintiff's exhibits 1 to 66, inclusive, certain documents consisting of articles of incorporation and annual reports of Browne Vintners Co., Inc. and other corporations. Following a colloquy precipitated by defendant's objection to the admissibility of these exhibits the trial judge announced he would proceed by first hearing the testimony of the plaintiff. The offer of the exhibits was temporarily withdrawn.
Counsel for plaintiff stated that he was then at the point where he had meant to put the plaintiff on the stand but he would not be ready to so proceed that afternoon because the plaintiff was not then in fit condition to testify due to inadequate sleep for two nights because of tooth trouble. Counsel advised the court that there was every reason to believe that the plaintiff would be able to testify on the following morning. On interrogation by the court the plaintiff stated that he had slept about three hours the night before, and but about two hours the night before that; that he was physically able to testify but mentally tired and unable to testify.
The court then put the case over until 10:30 A.M. the next day, March 13, 1962, but admonished plaintiff and his counsel that:
"I will expect to proceed expeditiously * * *. We will start at ten-thirty tomorrow morning. I will expect counsel to be here, and we will put in a full court day until this is disposed of."
and that there be "no delay either in marking or anything else during the balance of the trial." Neither plaintiff nor his counsel made any objection.
On the following day, neither plaintiff nor his counsel was in court at 10:30 A.M. and they had not arrived by 11:30 A.M. The court in dismissing the cause, with prejudice, for want of prosecution made the following statement for the record:
"The Court wishes to state for the record that this case was called for trial on March 12. It had been set some thirty days in advance with the explicit and complete understanding that this case would be tried at that time.
"Counsel for the plaintiff appeared with the plaintiff and at that time moved for a continuance, giving as an excuse that the plaintiff had not had enough sleep as a result of tooth difficulties, to proceed with the trial. After careful consideration the Court continued this case until this morning at 10:30, with the explicit understanding that counsel would be here.
"It is now 11:30, and counsel for the plaintiff has not shown up in this cause. On numerous other occasions this case had to be continued because of inability of the plaintiff to be ready for trial. At ...