Ward v. Morrison

Wells, J. The only real question in this case is whether, after an appellant has taken his appeal from [56] the judgment of a justice of the peace, and filed his transcript in the district court, he may give no further attention to it until he is notified that the case is set for trial, and in case the matter is called up and disposed of by the court without his presence or knowledge, be entitled to come in at any reasonable time afterwards and show his lack of knowledge and be granted a new trial. As said by the Supreme Court in the case of Hemme v. School District (30 Kan. 377): “A trial court, for the purpose of administering justice, has a very wide and extended discretion in setting aside or modifying proceedings had in its own court.” This discretion that is granted to the trial court does not belong to the Appellate Court. If the trial court in this case had awarded a new trial, we do not think we would be justified-in reversing the order; but in reversing it now, we would be required to say that the trial court had no discretion in the matter, but should have granted a new trial as a right. This is surely not the law. When a party files a case, either by original petition or transcript, it his duty to watch it until it is tried; and unless he has been imposed upon by some fraudulent proceeding and been thus kept from appearing when it was set for hearing, he cannot complain. There is no law or rule of court shown requiring clerks of the district courts to notify attorneys or litigants of the time when their cases are set for trial, and there is no showing of such a universal custom as would make such a notice obligatory upon the clerk. If he usually does it as a matter of accommodation to litgants and attorneys, that would not entitle them to demand it as a right. In this case there is no showing that the plaintiff in error made any effort whatever, either by himself or [57] attorneys, to know when the case would probably be put upon the docket or set for trial. “The facts must be so stated as to make it appear that no reasonable or proper diligence or care could have prevented the trial or judgment; that is, that the party complaining is not himself guilty of any laches.” Hill v. Williams, 6 Kan. 18. “ The negligence of the party is no ground for a new trial.” Holderman v. Jones, 52 Kan. 743. We are referred to the cases of Fudge v. St. L. & S. F. Rly. Co. (31 Kan. 146) and Hemme v. School District, supra, as authority for the plaintiff in error, but both of these decisions are in harmony with the law as herein stated, as in each a new trial was ordered in the reasonable discretion of the trial court. The judgment of the court below will be affirmed.