Goldstein v. Kennedy

CAYTON, Acting Judge.

In this action for the value of materials and services defendant offered no evidence but stood on a motion to dismiss. The motion was based on the ground that plaintiff had failed to diligently prosecute the action. The trial judge denied the motion “on the ground of excusable delay on the part of Plaintiff” and also on the ground that defendant had been equally dilatory in failing to take a default on his counterclaim against plaintiff.1 Judgment was entered on the merits for plaintiff and defendant appeals.

The record reveals that defendant had earlier filed a written…