Martin v. Fales

18 Me. 23 | Me. | 1840

*28The opinion of the Court was by

Shepley J.

The phrase, “ fail to prosecute,” as used in the statute, points out the effect of an omission to appear for the plaintiff; and it is made the duty of the Justice, in such a case, to regard the suit as discontinued, or no longer to be prosecuted, and to award costs to the other party. In Sprague v. Shed, 9 Johns. R. 140, it was decided, that the omission of the plaintiff or any one for him to appear, was a discontinuance of his cause, and that the Justice had no authority to enter judgment for him. The statutes in that State *29and in this are not alike, but decisions upon the effect of a neglect to comply with the provisions of law are still applicable.

It does not appear from the record in this case, that the Justice, or the plaintiff, or any one for him, appeared at the time and place of trial; and there was a failure to prosecute the suit, which put an end to all further legal proceedings, unless the extraordinary circumstances, detailed in the record, authorize a different conclusion.

It is contended, that there was an incidental or inherent power in the court to protect itself from insult and danger, in circumstances not contemplated by the law; and that it might adopt the necessary measures to provide against apprehended danger, and continue the cause for trial to a time when the danger would no longer exist. What may be the effect of an order to continue a cause, w'hen the Court is resisted, and by force prevented from attending at the time and place appointed, it is not now necessary to decide. Nothing less than actual resistance or danger, can justify a Court of justice in coming to a conclusion, that the administration of the laws is superseded, and that the course of justice must give way to lawless violence. It W'ere better, if need be, that personal suffering should be endured by the members of a Court, than that the administration of the law should be yielded to an apprehension of danger, not then apparent, and that an undefined and discretionary power, suited, in his judgment, to the occasion, should be exercised by the magistrate, while he omitted to be governed by the rules prescribed by law.

The appearance of the defendant at the time named for an adjournment, cannot revive the process ; nor can it be regarded as a waiver of errors; for he appeared under protest, and for the purpose of insisting, that any further proceeding would be illegal.

However desirable to support the proceedings to prevent any one from deriving an advantage by causing excitement, and producing alarm and the apprehension of danger, the Court must regard such an evil as less than any attempt, on its own part, to bend the Jaw to circumstances, affording, at the same time, a precedent for the exercise of power not granted.

It becomes unnecessary to examine the other errors assigned.

Judgment reversed.

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