Marshall v. Merritt

Chapman, C. J. The power of the courts to order causes to be brought forward on the docket from a former term, where no continuance has been entered, is well established. Gile v. Moore, 2 Pick. 386, and 3 Pick. 194, nom. Commonwealth v. Moore, is an example. Browning v. Bancroft, 8 Met. 278, and 5 Met. 88, was brought forward in the court of common pleas from June term 1842 to September term 1843. The court say the power to do this is necessary for the proper regulation of the practice of the court from which appeals are made ; that when the party whose duty it was to bring the case forward is guilty of gross negligence, he should be held to have discontinued ; but of this the court of common pleas are judges. Such a power is also affirmed in Ely v. Ball, 8 Pick. 352. See also Capen v. Sloughton, 16 Gray, 364. In Stickney v. Davis, 17 Pick. 169, the action was brought forward after the lapse of a year, to correct an erroneous judgment and allow the administrator of the plaintiff to come in. In Hyde v. Chapin, 6 Cush. 64, the action was brought forward after it had ceased to be continued in the proper court from December term 1847 to May term 1849. In Terry v. Briggs, 12 Cush. 319, the motion to bring the case forward was denied on its merits. It was within the discretionary power of the superior court to order this cause to be brought forward. Exceptions overruled.