Whether the dismissal without prejudice for failure to prosecute was unconditionally reconsidered, reversed, and set aside to reinstate the civil case and have it ready for pre-trial are matters which should have been clarified and resolved in the first instance by the court a quo.
Complaint was for recovery of sum of money with prayer for a writ of preliminary attachment. Petitioner did not cause the case to be set for pre-trial.
A complaint may be dismissed due to plaintiff's fault:
- if he fails to appear during a scheduled trial, especially on the date for the presentation of his evidence in chief, or when so required at the pre-trial;
- if he neglects to prosecute his action for an unreasonable length of time; or
- if he does not comply with the rules or any order of the court. None of these was obtaining in the civil case.
In fine, petitioner cannot be said to have lost interest in fighting the civil case to the end. a court may dismiss a case on the ground of non prosequitur bu the real test of the judicial exercise of such power is whether under the circumstances, plaintiff is chargeable with want of fitting assiduousness in not acting on his complaint with reasonable promptitude.
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