Cook v. Hoyt

Treat, C. J. The petition shows that the judgment was unjust, and that it was not the result of negligence on the part of the plaintiff in error. The only question in the case, is, whether he made use of due diligence to take an appeal in the ordinary way. On this point, he states that he offered to take an appeal when the judgment was rendered, and for that purpose demanded a transcript of the judgment, which the justice refused to make. At the end of nine days, he went again to the office of the justice, eighteen miles distant from his residence, with an appeal-bond executed by a responsible surety, for the purpose of perfecting an appeal; but the justice was absent, and he left the bond, under.the impression that the justice would approve the same. He also states that he could make no further effort to procure an appeal within the twenty days, because of his necessary attendance, as a physician, upon patients dangerously ill. • We think he was entitled to a certiorari. He cannot be justly charged with negligence, under the circumstances detailed in the petition. He made two attempts to take an appeal; one on the day the judgment was entered, which was frustrated by the refusal of the justice; the other nine days afterwards, which was defeated by the absence of the justice. From that time until the expiration of the twenty days, he could make no other effort to "obtain an appeal, without neglecting his duty to his patients. His peculiar situation may properly be' taken into consideration, in determining the question of diligence. What may constitute diligence in one person, may not" be diligence ' in another differently situated. If the plaintiff could have left his patients without a violation of his professional duties, he ought to have made further efforts to perfect an appeal. .But he was not bound to put their lives in jeopardy by so doing. Common humanity would forbid such a course. This case is clearly distinguishable from White v. Frye, 2 Gilm. 65. There, the party resided in the precinct of the justice, and the fact that he called twice at the office of the justice to take an appeal,"was held not to be sufficient diligence. But it was strongly intimated, that it would be otherwise in a case like the present. The Court said: “ There is no doubt that, under certain circumstances, the attention shown in this particular case, might be held to have been sufficient. If, for instance, the petitioner could have shown that he resided far from town, and that he had no means of readily communicating with the justice, or that, by some pressing business, he was prevented from repeating his calls.” The judgment is reversed, and the cause remanded. Judgment reversed.