Harris V. City Of Canton

This is a consolidated appeal in which the plaintiffs-appellants, Geraldine Harris, Bernadette Harris and Willie G. Harris, appeal from two separate district court orders dismissing their civil rights complaint. The initial complaint was dismissed in September of 1979 for want of prosecution. A subsequent request to set aside the default judgment entered pursuant to that dismissal was denied. Upon refiling of the complaint, the action was again dismissed. This second dismissal was based on the district court's determination that the action, when refiled, was barred by the applicable statute of limitations. We find that the refiled action was not untimely and, thus, that dismissal on that ground was inappropriate. Since this conclusion requires vacation of the final dismissal and a remand to the district court for further proceedings, we decline to decide whether the initial dismissal and the subsequent refusal to set aside the default judgment would justify a similar remand order by this Court.