40 Mo. 178 | Mo. | 1867
delivered the opinion of the court.
Tins was an action instituted for the purpose of recovering judgment against the defendant for an amount of money which the plaintiff alleged he had over-paid on a contract for the sale and delivery of corn. The defendant in his answer
The only question made is whether the court abused its discretion in not granting a new trial. The affidavit of Mills, which accompanied the motion for a new trial, states that he was taken ill about the middle of September, 1865, and from that time till the 26th day of October was confined to his room, a portion of the time to his bed, and was wholly unable to attend to business ; that after the last day mentioned he was able to attend to very little business; that •while he was ill in his room he requested Mr. J. C. Dodge, .a member of the bar, to visit Mr. Sharp, the defendant’s attorney, and request additional time to file a reply on account •of illness. Mr. Dodge called at the office of Mr. Sharp, and, mot finding him in, stated the fact to the person in charge of the office, who replied that of course such a request would She granted as an act of common courtesy between members
This court is never inclined to interfere with the discretion of the inferior courts in their action in refusing to grant new trials, unless a strong case is made out showing a palpable abuse of a sound discretion, and where the injustice complained of is not traceable to the negligence of the party asking us to intervene. When a cause is regularly docketed and set for trial, it is no excuse for the party who has suffered that his attorney was absent or did not attend to it—Stout v. Calvert, 6 Mo. 254; Steigers v. Darby, 8 Mo. 679; Jacob v. McLean, 24 Mo. 40. If courts should permit such a cause to be set up, there would be no certainty in trials and no end to litigation. It is the duty of the party to see that he is properly represented in court; and if his attorney is disabled, to bring that fact to the attention of the court, and either apply for a continuance, or employ other counsel.
It cannot be said here that Mills was misled by any understanding or arrangement entered into with Mr. Sharp. He only asked indulgence for filing his reply; that was granted, and he filed it at his own convenience, long after the time had lapsed when it should have been filed by law. He was in court when ho filed it, just previous to the time the cause was set for trial, and it is not shown that he notified either the court or the defendant’s attorneys that he would be pre
When the cause was called for trial the plaintiff did not answer or appear, and the court proceeded to hear evidence at the instance of the defendant and in his behalf, and then gave judgment for him for the full amount of the offset and counter-claim set up by him in his answer. Was this proper ? The counsel on both sides have passed over tlie matter in silence and seem to have treated it as admittedly regular. But we are not satisfied with this cause of procedure. Although when the defendant files a counter-claim, and the plaintiff replies thereto, the parties are to a certain extent both plaintiff and both defendant, as each claims affirmative relief ; yet by the very provisions of the statute the counterclaim is set forth in the answer and forms a part of it. The plaintiff is always at liberty to dismiss his action, or suffer a non-suit, before his cause is submitted ; and if he fails to appear when it is called, it may be dismissed for want of prosecution. This works no injury to the defendant; for if he has merits in his counter-claim, he can institute proceedings against the plaintiff at any time. This precise case does not seem to have been within the contemplation of the Code, and no similar case has arisen that we are aware of calling for a judical construction. As the Practice Act is a radical innovation on the whole system of pleading, it will only be followed as far as its provisions are plain; and where doubt occurs, we must look to the law as it existed before the change was made.
Mr. Stephens says: “Again judgment of non-suit may pass against the plaintiff, which happens when, on trial by
The answer under the Practice Act must contain, first, a denial of the allegations in the petition controverted by the defendant, and secondly, a statement of any new matter constituting a defence or counter-claim. The counter-claim then, although a separate cross-demand on which the defendant may be entitled to judgment, is nevertheless a part of the answer and an auxiliary suit — a dependency on the original suit or petition.
If the plaintiff does not come into court and prosecute his suit, no judgment can be taken against him, and his action should be dismissed, or judgment of non-suit rendered. The rights of the defendant are not prejudiced, and he can pursue his remedy on the matter sec up in his counter-claim as an original action.
The judgment must be reversed and the case remanded; appellant to pay the costs in this court.
See R. C. 1855, p. 262, § 16. Trial by Proviso; 2 Tidd’s Prac. 699; 21 Vim Ab. A. 1, 192, R. 82; Regina v. Banks, 2 Salk. 652; Rex v. McLeod, 2 East, 202, n. a.; Humphreys v Rowley, 4 T. R. 767; King v. Pippett, 1 T. R. 492; S. C., 1 T. R. 695.