McCaffree v. Guesford

Weight, 0. J. The whole record has been examined, and we are unable to see what the various causes specified in the motion to dismiss, point tq, unless it is, that the pe- ’ tition, not having been on file at the time the notice was placed in the sheriff’s hands, the suit was to be taken as discontinued under section 1716 of the Code, no good cause having been shown for the failure. Indeed, all the other causes appear to have originated in evident mistake, as to the contents of the notice and petition. There are no such variances as are suggested, nor, so far as we can see, the least pretence for such motion in this respect. And the only question that does arise, is as to the effect of filing the petition on the day after the time fixed in the notice. Section 1715 of the Code provides, that the original notice must inform the defendants that on or before a certain day therein named, a petition will be filed, &c. Then, by section 2518, in which a form is given for the original notice, it contemplates that the notice may inform the defendant, that there is then, that is, at the time of the receipt of the notice by the sheriff for service, or that on or before a day to be fixed, there will be a petition on file. In.this case, the plaintiff notifies the defendant, that the petition was then on file, but it was not, in fact, filed until the next day. Section 1716 provides, that if the petition is not filed by the time fixed, or if not filed ten days before the first day of the next term, the action will be deemed discontinued, unless good cause be shown for the failure. The language used in this section is by no means clear. If the filing of the petition ten days before the first day of the term, and after the time fixed in [82] the notice, obviates the discontinuance spoken of, then the first clause of the section is almost, if not entirely, inoperative. If, on the other hand, the petition is so filed ten days before the first day of the term, though after the day fixed by the notice, and such filing would not prevent a discontinuance, then the last clause, as we regard, would be entirely inoperative. There is a want of congruity and harmony, indeed, in this section, in any view of it. ^But, taking the section entire, we think, that if the petition is filed ten days before the first day of the term, though after the time fixed in the notice, it is sufficient. Our law provides -for ten days, as the notice that defendant shall have, in order to prepare for trial. If he has not such notice, he can, if he desires it, have the cause continued. If the petition is on file for that length of time, we think, he is required to take notice of it, even if filed after the day specified in the original notice. We think this the.most reasonable construction. This will come nearer giving meaning and effect to the whole section, than the opposite construction. By this, it is held to mean just what it says in fact, but by the use of language that is unnecessary, and that leads to confusion. By the other construction, no meaning whatever, is attached to the second clause of the section. The one here given, however, does no more than make the first clause inoperative in many cases, and retains the language entire. ■ This motion should have been overruled, and the judgment is, therefore, reversed. Isbell, J., dissented, and delivered the following opinion ;