134 Ky. 568 | Ky. Ct. App. | 1909
Opinion of the court by
— Affirming.
The petition was filed in the McCracken Circuit Court on April 17, 1908. Service was had upon J. K. Bondurant in time for the action to be an appearance ease at the April term, 1908. On May 16,1908, which was during the April term, appellee, Bondurant, filed his answer. On the 6th day of June, 1908, and during thesameterm,appellantfiled a reply. Tliecasewas not set for trial at the April term of the court, but went over to the October term, 1908, and was set for trial on the 15th day of that term. On the 6th day of November, and during the October term, an order was entered continuing the case on account of the illness of W. A. Berry, appellee’s attorney. The case then went over to the February term, 1909. When the latter term arrived, an order was entered setting the case for trial on the 16th day of that term. On the 18th day of February, 1909, appellee was permitted to file an answer over the objection of appellant. The latter then moved the court for a continuance and filed an affidavit in support of his motion. The case was then reset for trial on the 22d day of the February term. Thereafter the action was continued and set for trial on the 7th day of the next (May) term of the court. Oh the 22d day of the May term, 1909, appellant filed a reply to appellee’s answer. On May 24, 1909, the following order was made:
The following is the agreement referred to in the foregoing order, viz: “It is agreed between the plaintiff and the defendant in this action, that the action may be continued until the October, 1909, term of this court. J. D. Mocquot, Attorney for Plaintiff. Wheeler, Hughes & Berry, for Defendant.”
On June 5th, 1909, the court entered an order dismissing the petition of appellant and the counterclaim of appellee, without prejudice. At the same time the court made the following statement which is incorporated in the record: “As the controversy in this action is between the court and counsel on each side' of the case, and as a question of practice is involved, and the attorneys on each side of the case seem to be in accord, and against the views held by the court, I have thought it not improper to make a brief statement of the reasons for my action as judge of the McCracken Circuit Court in dismissing plaintiff’s petition and defendant’s counterclaim. On January 21, 1907, the McCracken Circuit Court had entered of record the following rule or order to wit: ‘It is ordered by the court that no case set down for trial shall be reset or continued by agreement of parties or attorneys without consent of the court and legal or sufficient reasons shown therefor’ — and caused same to be posted in conspicuous places in
‘It is agreed between plaintiff and defendant in this action that the case may be continued until the
This brings us to the determination of the question whether or not the rule adopted by the court, as set out above, is a reasonable one, and whether or not it violates any rule of law. Section 371 of the Civil Code of Practice is as follows:
“An action, or any cause of action, may be dismissed without prejudice to a future action — (1) By plaintiff. By the plaintiff, before the final submission of the case to the jury, or to the court, if the trial be by the court. (2) By court. By the court — (a) If the plaintiff fail to appear at the trial, (b) For the want of necessary parties, (c) On the application of
In our opinion, the rule in question and the order predicated thereon are fully covered by the language of subsection “d” above quoted. In this case the plaintiff disobeyed the order, and the defendant, who was in effect a plaintiff so far as his counterclaim was concerned, also disobeyed the order. That it was an order concerning the proceedings in the action there can be no question. The commonwealth is put to great expense to maintain its courts. It was not intended that the courts should be at the mercy of attorneys, and be compelled to continue cases whenever agreed to by them. In such cases the court has a discretion, and where the discretion is predicated upon a reasonable rule, adopted by the court for the dispatch of its business, this court will not interfere with the trial court. If attorneys could, upon agreement, secure continuances of cases whenever they so decided, it would greatly interfere with the dispatch of business. As was pointed out in the statement of the trial judge, there would be nothing to do on some days, while the docket on other days would be greatly crowded. Thus it is of importance that cases should be so arranged upon the docket that the court and the jury should have plenty to do during the continuance of the term. It would not do to permit attorneys, arbitrarily and without valid reasons therefor, always to continue cases by agreement. While the trial court should as far as possible accommo
Judgment ■ affirmed.