90 Mich. 520 | Mich. | 1892
On March 16, 1886, the relator commenced a suit by capias against William B. Hayes in the superior court of Detroit. Hayes was held to hail by an order of the court, and upon his arrest gave bail
The relator contends, in his petition for mandamus, here, that the case has been on the calendar for trial for 33 terms of that court, and that he has been prevented by frivolous excuses from bringing it to hearing, and he asks a mandamus directing—
*522 1. That this default.be set aside, and the plea treated; simply as a notice under the general issue.
2. That the court proceed to the hearing of the case in preference to other cases now on the docket, by reason of the fact of its long standing upon the docket, and his-effort to get it to trial.
An order to show cause was issued, and the presiding judge of that court has made return, by which it is claimed that—
1. Default was properly entered by reason of the failure of the relator to reply to the plea.
2. There is nothing in the case which requires that it. be preferred over other cases awaiting trial before the Wayne circuit court.
Under the practice at the common law, when a plea. puis darrein continuance was filed it had the effect to eliminate all other defenses, as by that proceeding the-defendant abandoned his former plea, and placed the issue of the suit entirely on the new plea. It therefore-became the duty of the plaintiff to reply to such plea,, and upon failure to do so his default would be taken.. Whittemore v. Stephens, 48 Mich. 573.
On the 30th of- April, 1884, this Court, however,, adopted Circuit Court Eule 106, which provides:
“ When matter shall arise subsequent to the joining of issue in a suit at law, which the defendant shall desire to rely upon as a defense, he shall be at liberty to give-notice thereof as a special defense under the plea of the-general issue, and the filing of such a notice shall not. be deemed a waiver of other defenses. The notice shall be served under the rules for the service of pleas, and no replication thereto shall be necessary. The notice-shall be interposed under the practice heretofore regulating the filing of pleas puis darrein continuance, and, if' the filing is after the case is noticed for trial, or during a term of court when the case is on the docket for trial, the plaintiff shall not be compelled to proceed to trial at that term, and costs of continuance shall be in the discretion of the court.”
It is apparent that the plaintiff has been deprived of the right to try his case in the regular order in which it is entitled to be placed upon the calendar of that court. We can make no order advancing the case upon the calendar, but we think it the duty of the court below to permit the plaintiff to try his case at the earliest possible moment consistent with the business of that court, and when it shall be reached in its regular order upon the docket.
The writ of mandamus will issue directing that court to set aside the default, and to proceed to the trial of the cause when .it shall be reached in its proper order upon the docket, unless continued upon proper showing.