Porter v. Moffatt

BY TfiB COURT. We see nothing in the original petition which should, have prevented it from being dismissed. The District Court was clearly within the limits of its authority in ruling the defendant to plead by a day in vacation, and in entering up judgment at the subsequent term for want of such plea. Whether the default was properly entered in vacation, we cannot inquire. The District Courts can make their own rules on that subject, and what those rules are we cannot know farther than they are set forth in the record before us. But the amended petition sets forth some ground for the interposition of a court of equity. It states that prior to the day on which the defendants were ruled to plead, there was a compromise pending between the defendant in this action and one of the complainants, and that it was understood and agreed that the suit should be withdrawn. This is alleged as the reason not only for not pleading in time, but also for not appearing at the next term of the court. If this be the true state of the faets, their negligence was excusable, and they would be entitled to relief. It is true that the amended petition was not sworn to, and on that account a motion to dissolve the injunction would have been properly sustained. But after such dissolution the complainants would have been entitled to have proceeded with their suit, and to have obtained relief, if they had shown themselves en-, titled to it at the final hearing. The dismission of the petition improperly deprived them ofthis right. The order of the court below dismissing the petition will therefore be reversed, and the oause remanded to the District Court of Hemy county-.