Cleaver v. Smith

Mr. Justice Mulkey delivered the opinion of the Court: Mary Cleaver, plaintiff in error, on the 21st of April, 1880, filed a bill in the Superior Court of Cook county, against the heirs at law and personal representatives of William Sidney Smith, late of Suffolk county, New York, seeking to recover certain real estate in the city of Chicago. In the view taken of the case it is not necessary to discuss the particulars of the controversy. A summons was issued against the defendants on the same day the bill was filed, which was subsequently returned “not found. ” There were ten of the heirs, all of whom, except Charles F. Smith, on the 10th of June, 1880, filed a joint and'several answer, denying the equities of the bill, and showing that the said Charles F. had disposed of his interest in the property before the filing of the bill. On the 28th of the same month, a general replication was filed to the answer. . The record fails to show that any steps after the issuing of the original summons were ever taken by complainant to procure service on the said Charles F. Indeed, no steps of any kind seem to have been taken in the case after the filing of the replication, until the third day of December, 1880, being a period of some five months, when the following final order was entered in the cause: “This cause being this day called for hearing, come the defendants, by their solicitors, and the complainant comes not, nor does any one for her, and on motion of defendants it is ordered that this cause be and is hereby dismissed at complainant’s costs, for want of equity.” It is clear the decree as rendered can not be sustained. Indeed, this is conceded by solicitors for defendants in error. On the other hand, it is equally clear that in view of the apparent laches of0 plaintiff in error, wholly unexplained, the court, when the cause was reached upon the call of the docket, ■would have been fully warranted in dismissing the bill for want of prosecution. We must assume the case had been placed upon the trial docket, otherwise it would not have been called for a hearing, and if it had, through inadvertence or otherwise, been improperly placed there, it was the duty of plaintiff in error to have had the order placing it on the trial docket set aside, if the cause was not ready for a hearing. Parties are bound, at their peril, to take notice of all orders regularly made in the progress of a cause. When, therefore, a cause is regularly placed upon the trial docket, it is the duty of the parties to be present when the cause is reached on the call for final disposition, and if they are not, in the absence of a reasonable excuse, they must suffer the eonsequences. So far as the merits of the controversy are indicated by the documentary proofs and exhibits in the cause, we see nothing favorable to complainant, and from this fact, taken in connection with the unexplained laches on her part, we are of opinion the ends of justice will be best subserved by entering the proper decree in this court. As the decree of the court below is erroneous in dismissing the bill “for want of equity, ” instead of “for want of prosecution, ” as it should do, it is for that reason reversed, and the defendants in error are taxed with the costs in this court, and the plaintiff in error with all costs in the court below, and a decree will be entered here dismissing the bill without prejudice. Decree reversed.