Willey v. Durgin

Gray, C. J. It is within the discretion of every court, as incident to the arrangement and regulation of its business, at such times as it may appoint, to call the docket of actions which have been entered and have not reached final judgment; and to default any party who fails to appear when called, even if an appearance has been previously entered in his behalf. Jarvis v, Blanchard, 6 Mass. 4. Randolph v. Barrett, 16 Pet. 138. [70] When the action is not on the trial list, it is not usual or just to do this, without reasonable notice of the time when the docket is to be called. But in the present case it appears that reasonable notice was published that the docket of such actions would be called on a certain day. There is nothing in the rules of the Superior Court, which restricts its general powers in this respect. The 18th and 19th rules relate to the trial list only. The 51st rule, providing that the civil docket, or such part thereof as the presiding judge may direct, shall be called annually at a certain time, does not prevent him from ordering it to be also called at any other time. When a case has been referred to arbitration by rule of court, neither party indeed can rescind the rule without an order of the court; and, as was said by Mr. Justice Jackson, “ after such rule of reference, neither party is generally demandable in court, until a report be made; as the trial is in the mean time going on before the referees.” Haskell v. Whitney, 12 Mass. 47, 51. But a case so referred remains upon the docket, cannot be finally disposed of without a judgment of the court, and is meanwhile subject to the control and order of the court, upon the motion of either party, and after reasonable notice to the other. At the time of the calling of the docket at April term 1873, nearly six years had elapsed since any action had been taken by the arbitrator, and more than a year since the defendant had been notified of the withdrawal of the counsel originally employed by him, and had neglected to retain other counsel. Under these circumstances, a majority of the court is of opinion that it was within the authority and discretion of the presiding judge upon the motion of the plaintiff to order a default to be entered, and to refuse to grant the subsequent motion of the defendant to take off that default, except upon such terms as the judge deemed reasonable. To the exercise of such discretion no exception lies. Reynard v. Brecknell, 4 Pick. 302. Sawtell, petitioner, 6 Pick. 110. Horton v. Wead, 9 Allen, 537. Rogers v. Ladd, 117 Mass. 334. Exceptions overruled.