Smith v. Pinney

2 Neb. 139 | Neb. | 1873

Lake, J•

This case was brought by Smith against Fraker before a justice of the peace; from whose judgment it was appealed to the District Court. At the March term, 1870, on the suggestion of the death of Fraker, the action was duly revived, and continued against Pinney as the administrator of his estate.

Nothing further was done until the September term of the same year, when Pinney, the defendant, filed his motion to dismiss the case for want of prosecution. This motion was sustained, and judgment rendered against Smith for costs.

After the final adjournment of the Court at this term, Smith filed his petition for the vacation of the judgment of dismissal, which was heard at the following term, and granted; to which exception was duly taken by the defendant.

The facts set forth in the petition are admitted, which presents to us the single question, whether they authorized tbe Court to vacate tbe judgment wbicb it bad rendered at a former term.

Our statute, sect. 602, of tbe Code of Civil Procedure, provides that tbe District Court shall have the power to vacate or modify its judgments, after tbe term at wbicb they are made, for certain specified causes. One of these causes, aud tbe one relied upon by the defendant in error, is “ for unavoidable casualty or misfortune, preventing tbe party from prosecuting or defending.”

■ But do the allegations of tbe petition, when given their utmost force, bring tbe case within tbe operation of this statute ? They are set forth in these words: “ That the said plaintiff was fully expecting and preparing to be present at the said term of Court, and prosecute the said suit; and that he was informed, and firmly believed, that tbe said term of tbe Court was to be held on the second Monday in September, 1870, and was making bis preparations to have bis testimony before tbe Court at that time ; yet that tbe term of tbe said Court was held on tbe first Monday of September, and that he did not learn this fact until tbe Court bad finally adjourned; and that be was living at tbe time in Richardson County, and bad no opportunity of learning the time of holding courts in Nemaha County; that the law fixing tbe time of bolding courts in Nemaha County bad been changed, and that tbe same bad not been generally published and known; that tbe said plaintiff came on tbe week after Court bad adjourned with bis testimony, and found that tbe case bad been called up, and dismissed for want of prosecution, and that be bad been adjudged to pay tbe costs.”

Tbe only legitimate inference to be drawn from this statement is, that tbe plaintiff was ignorant of tbe law fixing the terms of Court for tbe county of Nemaha. In this be may have been unfortunate; but it cannot be said to have been such unavoidable casualty or misfortune as is contemplated by the section of the statute above referred to. The statute in question was a general law of the State, under which grand and petit jurors had been summoned from the body of the county, the whole machinery of the Court put in motion, and the business of the term duly transacted.

It is a very familiar rule, quite applicable to this case, that ignorance of the law will furnish no excuse. Were this otherwise, there would be no end to litigation, nor any stability to the judgments of courts.

It is the duty of the courts to require a reasonable degree of diligence on the part of a suitor in the prosecution of his case. He has no right to require the attendance of the defendant term after term, while he is doing nothing to bring the case to issue and trial. When no greater attention is manifested by a plaintiff than this record discloses, he has no just cause for complaint if he is sent out of court with costs taxed against him.

From an examination of the record in this case, we find that the action was pending in the District- Court at the March term, when the administrator was substituted for the original defendant. It was then continued to the September term; up to which time no petition had been filed, nor any attention whatever given to the case by the plaintiff. He might well have been considered as having abandoned his suit.

It is the duty of a plaintiff to give prompt attention to and prosecute his case with vigor; and, if he do so, it will not drag through two terms of court and a six-months’ vacation without a petition being filed, or any other step taken to hasten it to final judgment. It is not a case of unavoidable casualty or misfortune, but rather of extreme indifference and neglect on the part of the plaintiff. Miller v. Albaugh, 24 Iowa, 128.

But it is said that the power of the District Court over its own judgment is entirely discretionary, and not subject to review by this Court. This is true of its orders made during the term at which the judgment is rendered; but this discretion ends with the rising of the Court. Thereafter this power must be exercised within the limits prescribed by the statute, and governed by fixed principles of law. To these the courts must confine their action; and any substantial departure therefrom, resulting in an injury to a suitor, may subject their judgment to review and reversal by proceedings in error. Huntington McIntyre v. Finch & Co., 3 Ohio State, 445; Taylor v. Fitch, 12 Ohio State, 169.

It may be unfortunate to the defendant in error not to have a trial of his case upon the merits: if so, it is the result of his own inaction, and not any fault of the plaintiff in error, or of any hard rule of the law.

When a case is taken into the District Court by appeal, a reasonable degree of care and prudence requires the parties to take counsel of persons learned in the law at once, that they may be duly advised of what is necessary to be done to protect their respective interests. If they fail to do so, and loss is thereby occasioned, they have only themselves to find fault with or blame.

It is a right which a defendant may insist upon, that his case shall go forward to final judgment with all reasonable speed ,• and it is the duty of the Court to protect him in this right, and to guard him against all unnecessary delays.

We are of opinion that the facts set forth in the petition did not authorize the Court below to vacate its former judgment; and that its order in that behalf should be vacated, and the said judgment of dismissal reinstated.

Judgment accordingly.