Yost v. Alderson

58 Miss. 40 | Miss. | 1880

George, J.,

delivered the opinion of the court.

The bill of complaint in this cause was filed in the Chancery Court to annul or have declared void a deed purporting to have been made by one of the appellants, Mary K. Yost, and her husband, on the 9th of May, 1876. The deed on its face appears to have been executed by her, with her mark, and the execution of it is attested by John H. Boyd, who also on the date of the deed, as a justice of the peace, certified regularly to an acknowledgment of it by both the husband and wife. The bill charges that the appellant never executed the deed and never acknowledged it, and on this ground relief is prayed.

The bill was filed in March, 1878, and, the first summons on the bill being returned not found, an alias summons was issued and duly served on the appellee on the 24th of June following. The summons required the appearance of the defendant “at a chancery court to be holden at the court-room thereof, in the city of Jackson, on the second Monday of July, 1878,”' which was a rule-da}*- of the court, the regular term of the-court commencing on the 9th of the ensuing September. On-the second Monday of August the complainant took a proconfesso on the bill, the defendant having failed to answer. On the next day the solicitor of the defendant went to the-clerk’s office to get the bill, in order to answer it, and, the office being closed, could not gain admittance. On the next day after this he succeeded in getting into the office, and found that a pro confesso had "been entered, and thereupon went to complainant’s solicitor and asked that it be set aside, prom-, ising to file the answer that day. This request was refused, and on Friday of the same week the defendant made a motion, to set aside the pro confesso. decree and for leave to file his answer. In support of this motion he filed his answer, which contained a full denial of all the equities of the bill; and he also filed an affidavit, from which it appeared that when the summons was served on the defendant he had just returned from an absence of six months, and was then much engaged in business which had accumulated during his absence, and that he was much excited, in common with the rest of the community, by news of yellow fever in New Orleans and by fears that it would reach Jackson; that, owing to these causes,, and the fact that the summons required him to appear at a term of the Chancery Court, and not at a rule-day, he did not observe that the day of appearance was a rule-day, and not the day for the commencement of the next term of th.e court; and in this way he neglected to put in his answer before the pro confesso decree was entered.

The chancellor sustained the motion and allowed the defendant to file his answer. And this is the first error complained of.

We do not doubt that this action of the chancellor was entirely correct. The filing of the answer occasioned no delay in the trial of the cause, and the application to file it was made so soon after the pro confesso decree was entered that it is impossible to conceive that the complainant had omitted to take any steps to procure testimony or secure her rights, upon the faith that the bill would not be defended. The statute (Code 1871, sect. 1021) declares that a “pro confesso so taken shall not be set aside without good cause shown, supported by affidavit.” It is argued that the cause shown was not good and sufficient; that mere inattention and forgetfulness cannot be a valid excuse for a failure to discharge a legal duty. This may be true when such inattention or forgetfulness has occasioned a failure which has been injurious to the adverse party, or the action of that party, based on such failure and caused by it, cannot be reversed without injury to him. But when the neglect is in the mere conduct of a suit, and its consequences do not operate injuriously, its condonation by the judge can do no harm except to deprive the adverse party of an advantage which he has secured in virtue of such neglect, and in that case the party guilty of the neglect should not on that account alone be deprived of the means and opportunity of maintaining or defending his rights. The object of the institution of courts is to administer justice according to law, and lawsuits are allowed for that purpose alone. Rules of procedure regulating the conducting of business in courts are instituted solely to facilitate these ends. They are necessary, and their due observance should be enforced by the courts. But it should not be forgotten that they are aids to secure the administering of'justice, not shackles to bind courts to the perpetration of wrong. When their nonobservance is in a trivial matter, working no injury to the adverse party and not materially impeding the due progress of the cause, the fault should be corrected, and the authority of the court maintained rather by the imposition of costs and the use of other disciplinary agencies than by depriving parties of the opportunity of a fair trial, to secure which such rules are instituted.

It is true that diligence is to be encouraged and the want of it discountenanced, but these ends should never be attained by transferring to one suitor the estate of another, if there be other means of securing them. Nor should a lawsuit be allowed to become a mere game of skill and address, to secure to the successful litigant the fruits of his superior management.

The decree of the chancellor dismissing the bill was correct on the merits of the case. It is true the complainant and her daughter testified that the complainant refused, in the presence of the justice of the peace, to execute the deed or acknowledge it. In opposition to this positive testimony are the tacts, fully established, that the justice of the peace who attested the deed and certified to the acknowledgment was a man of high character and well acquainted with his official business, and that Yost, the husband, paid rent for the property conveyed in the deed, during his lifetime ; that Mrs. Yost knew of this, and after her husband’s death she paid rent for the same premises for a short time, and then voluntarily surrendered them to the appellee. It is also to be noted as a significant circumstance that the bill was not filed till after the death of the justice of the peace and of the husband. Under all the circumstances, the chancellor was well warranted in finding that the deed had been duly executed by the appellant.

Decree affirmed.