32 Miss. 180 | Miss. | 1856
delivered the opinion of the court.
. This was a bill filed by the plaintiffs in error, in the District Chancery Court at Natchez, in the nature of a bill of review, for the purpose of setting aside the dismissal of a previous suit in that court, brought by the plaintiffs in error against the defendant. The grounds upon which the relief is sought are, in substance, that at two terms of the court next preceding that at which the dismissal took place, the defendant applied to the complainants’ solicitor for a continuance of the cause, in order to have an opportunity of effecting a compromise with the complainants, which pro
The defendant demurred to the bill, and answered as to the charge of fraud; and the demurrer was sustained and the bill dismissed.
We think it clear that, upon the facts stated in the bill, the appellants were entitled to the relief sought.
It appears by the allegations of the bill, that the two continuances, previous to the term at which the dismissal took place, were granted at the request of the defendant, and, as must be presumed, for his benefit. If the continuances were granted with the view of giving the defendant an opportunity to compromise the debt, as is alleged, that was certainly a good excuse for the failure to set the case for hearing, or to take any other step in it. The complainants’ solicitor had the right to act upon the assumption that the propositions made by the defendant were made in good faith, and would be acted upon by him accordingly. The defendant was, therefore, the cause of no steps being taken in the cause at the terms when continuances were granted; and if these facts had been stated or made known to the court, the court would not have been justified in dismissing the suit. If there was any fault in the due and proper prosecution of the suit, it was occasioned by his own conduct.
The decree must be reversed, the demurrer overruled, and the defendant required to answer within sixty days.