Byce v. Ross

McCay, Judge. It is with great reluctance that we interfere with the discretion of the Circuit Judge, in the conduct of the business in his Court. But this is a very hard case, and as the plaintiff has, as we think, without any fault of his, been turned out of Court, we feel constrained to reverse Judge Harvey’s ruling. It appears from the plaintiff’s affidavit, that he was detained at home much of the day by providential cause, and that as soon as he got to the Court-house, he went with the activity and industry of a vigilant suitor, to get his witnesses into the Court-house. Had th'e Judge known when he dismissed this case the facts stated in the affidavit, we cannot think he would have refused to lay this case aside until the plaintiff’ could come in. The case was not in its order. True, [93] whilst the law requires cases to be tried in the order, the Judge may, in his discretion, for the progress of business, alter this order. Still the order of cases is a fact. The case at bar was not in its order. An older case was ready for trial. The Judge failed to find it on the docket, and, using the discretion vested in him, he called this case. That was well enough ; but when he afterwards found there was, in fact, such a case, and he had inadvertently missed it, and the plaintiff in this case comes forward ready for trial, with the excuse he presents, we feel that the Judge ought to have reinstated the case, dismissed, as it in fact was, by a mistake of the Court, in not finding the older case. Judgment reversed.