Meagher v. Gagliardo

By the Court, Sanderson, J.: The case shows that the action was commenced on the 4th of June, 1867, and that at that time Francisco Gagliardo had left the State, to the knowledge of the plaintiff That issue having been joined by the other defendants, the case, by agreement, was set for trial on the 7th of August, 1867, the plaintiff not objecting upon the ground that no service had been obtained upon Francisco Gagliardo, and that the case was not at issue as to him. That on the 7th of August the plaintiff, not being ready on account of the absence of witnesses, moved for a continuance until the 12th. That this also was done without any suggestion that he was unwilling to proceed without Francisco. That pending the motion to continue, it was agreed in open Court, and by an agreement entered as an order of Court, that the case-should be continued for the term, and should be set for trial and tried on the 5th of December, 1867. That this was also done by the plaintiff without any suggestion that he was not desirous of proceeding to trial in the absence of Francisco, or that he would not be willing to go to trial on the 5th of December, unless before that time the default or appearance of Francisco had been procured. That on the 5th of December, when the case was called for trial, and the defendants who had been served and had answered announced themselves ready, the plaintiff, for the first time, objected to going to trial until the action was also at issue as to Francisco, who had not yet been served, nor had he voluntarily appeared, and that, too, without attempting to assign any reason why, during the six months which had then elapsed since the commencement of the action, no attempt [605] had been made to obtain either personal or constructive service upon Francisco. Conceding that Francisco was a proper party, a point we do not decide, the action was, nevertheless, one in which the plaintiff was at liberty to proceed against the other defendants who had been served, (Practice Act, Sec. 32;) and we consider that whatever right the plaintiff may have had to delay the trial until service could have been obtained upon Francisco, was waived by him by the course he pursued. With full knowledge of his rights in the premises, and of the fact that no service had been made upon Francisco, he first agreed, without reservation, that the issue between him and the other defendants should be set for trial at a particular day, then asked for a continuance, not because Francisco had not been served, but because his witnesses were absent; and lastly, agreed of record, in consideration of a continuance by consent, that the case should not only be set for trial, but be tried on a certain day. After his having thus repeatedly indicated his indifference as to the absence of the defendant Francisco, and his willingness to proceed without him—after his having allowed six months to pass without having made any effort to obtain service upon Francisco—after having put the defendants to the trouble and expense of two preparations for trial, without having, in the remotest manner, intimated that he was not disposed to proceed to trial until Francisco had been served, or had entered a voluntary appearance—the objection of the plaintiff to a trial on that ground, on the 5th of December, without suggesting the slightest reason why his solemn and repeated waivers should be set aside, we do not hesitate to say, has a savor of impudence, and the Judge who would listen for a moment to such a proposition would be trifling with his duty. Agreements between parties of the character of which this case discloses, are not only agreements between the parties, but between them and the Court, which the latter is bound to enforce, not only for the benefit of the party inter [606] ested in their performance, hut for the protection of its own honor and dignity. (Banks v. The Am. Tract Society, 4 Sandf. Ch. 438; Staples v. Parker, 41 Barb. 648.) We consider the claim of the respondents, that the appeal is frivolous and taken for delay, well founded. It is therefore ordered that they be allowed five per cent, upon the value of the property in suit, as found by the Court below— that is to say, sixty-eight dollars—as damages, and that the judgment of the Court below be affirmed. Mr. Justice Rhodes expressed no opinion.