Purington v. Frank

Wright, C. J. (1) — Appellee claims, that the court has no jurisdiction, from the fact that an order granting a continuance under the circumstances disclosed, is not such a decision or intermediate order, as is contemplated by sections 1555-6 of the Code. We do not stop to determine this question, however, as we see no reason for disturbing the decision of the court below. Causes are to be tried in the order of them commencement, and at the first term thereafter, unless reasonable cause for continuance or change of such order, be shown. In determining such application, much must necessarily be left to the discretion of the court. We need hardly repeat, what we have frequently had occasion to say, that it must be a discretion governed and controlled by legal rules. It is not to be arbitrary, and in violation of prescribed rules, or the manifest rights of parties. In this case, we see nothing to lead us to believe, that this discretion was improperly exercised. It was not a matter of so much importance, that the action at law should be tried first, as that the rights of the parties to the property in controversy, should be properly settled; .and when both actions were so pending before the same tribunal, we should require more than is now before us, to lead us to say, that it was an improper exercise of discretion, to postpone the trial of that which depended upon strict legal right, until those equities, which the defendant had been compelled to set up in a separate tion, could be heard and determined. Of course, the defendant should be required to prosecute his suit in equity with diligence, and when he fails in this respect, the action at law might properly be tried. And this practice, adopted [567] In. this ease, is not unusual in our courts, or in the courts of other states. Hutchins v. Biddle, 12 New H. 465; Adams et al. v. Manning et al., 17 Mass. 178. Judgment affirmed. Footnotes [(1)] Woodward, J., haying been of counsel, took no part in the determination of this cause.