McCarthy v. Garcia

Deen, Judge. Kenneth Garcia filed a complaint against Timothy McCarthy claiming damages in the amount of $200,000 based on malicious prosecution. Defendant McCarthy filed, in addition to his answer, a motion to dismiss the claim, and later on December 20, 1973, filed interrogatories and request for admission of facts. On January 3,1974, the case was dismissed "with prejudice” for failure to prosecute. On February 1, 1974, the trial court after argument amended its previous order by striking the words "with prejudice” and substituting the words "without prejudice,” from which defendant appeals. Held: Assuming that the request for admissions was properly served upon plaintiff, the trial court dismissed the case on January 3rd which was prior to expiration of the time allowed for response to the request. After the case was dismissed there was no claim pending against anyone and likewise no corresponding duty on plaintiffappellee to respond to request for admissions to a nonexistent claim. The trial court has the discretion to amend its order during the same term of court and it was not error to substitute the words "without prejudice.” Judgment affirmed. Eberhardt, P. J., and Stolz, J., concur.