Reynolds v. Nelson

41 Miss. 83 | Miss. | 1866

Ellbtt, J.,

delivered the opinion of the court.

The first objection taken to the decree is that the record does not show that the cause was set down on the issue docket of the court below, for final hearing. When either party directs the clerk to set down a cause upon the docket for hearing, the order, for that purpose does not appear upon the minutes nor become a part of the record. • It is usual to give the order in writing, but this is for tbe guidance of tbe clerk, and is not required by the statute, though very proper to be enforced by the court as a rule of practice. In the Circuit Court, the law requires all causes to be entered upon the proper dockets, and to be called in their regular order, but the record never shows the fact that such dockets were duly made out. These are matters pertaining to the routine of business, and as there is no way known to our law of calling a cause for trial, except by means of the dockets required to be kept, it must always be presumed, in the absence of proof to the contrary, that the business of the court was proceeded with in a lawful and orderly manner.

The second point relied on is, that the case was tried, and final decree signed, in less than five months after answer filed, without giving the time, allowed by law for taking testimony in support of the answer.

A demurrer to the bill was disallowed on the 18th of June, 1859, and leave given to the defendant to file his answer by the next term of the court, the said answer to be filed as of the term when the leave was given. Immediately following the entry of the judgment on the demurrer, the record states that, “ thereupon the defendant filed his answer in these words: ” the date of the filing is not otherwise given, and there is nothing to show that the answer was not filed immediately .on the overruling of the demurrer, as the language of the record imports, except the jurat, which shows that the answer was sworn to on the 16th of December, 1859. This would hardly be sufficient to overcome the express recital of the record as to the time of filing, as the answer might have been sworn to after-wards.

But admitting the answer to have been actually filed on the day it was sworn to — that is, on the 16th of December, 1859— it does not by any means follow that the final decree, signed on the day following, was, therefore, erroneous. Bor the court ought, and no doubt would, on disallowing the demurrer at the June term, have required the answer to be put in within thirty days, so that, allowing five months to take testimony, the cause would have been ready for hearing at the December term. But as a matter of favor and convenience to the defendant, he was allowed the entire vacation of six months in which to file his answer; and to prevent this indulgence from working injustice to the complainant, the court imposed the very proper condition, that it should be filed as of the June term, that is, that when filed, it should have the same effect only as if filed at the June term. ■ The object of this was that the five months allowed for taking testimony should begin to run from June term, and that the defendant should not, by delaying to put in his answer, entitle himself to another continuance.

But it is a mistake to suppose that a defendant is in all cases entitled to five months after filing his answer, to take testimony;. on the contrary, the complainant may in all cases set the caúse down for hearing immediately after the answer comes in, the only consequence being that he thereby admits the answer to be true. Rev. Code, 547, art. 46. That course might have been safely taken in this case, for the answer does not deny a single allegation of the bill, but only alleges that the defendant has no knowledge of any of the facts stated in the bill, and demands strict proof.

It is lastly insisted that the proof was not sufficient to sustain the bill, but on this point we have come to a different conclusion. We think the evidence was clear and convincing, and that the decree was correct. Let it'be affirmed.