Marsh v. Johns

Stewart, J., delivered the opinion of the Court. From the record in this case it appears the plaintiff failed to reply to the defendant’s plea, and judgment of non pros, was entered against him, it is tobe presumed according to the rules of the Court The plaintiff then moved to strike out the judgment of nonpros., which was overruled. This appeal was taken from the judgment of nonpros. The 75th Article, 34th sec., of the Code provides, that “ no cause shall be continued beyond the second term after process has been served on the defendant, unless by consent of parties, or upon good cause shown by the party asking the continuance.” The purpose of the law, and the establishment of rules by the Court in accordance therewith, is for the orderly and prompt dispatch of business. [571] (Decided 24th July, 1878.) Besides these general rules, it is competent for either party to obtain a rule on the other party to declare, plead, reply, rejoin, &c. by a special day to be prescribed by the Court other than either of the general rule days, and if the party so required neglect to declare, plead, reply, rejoin, &c. by the day prescribed, judgment of non pros., or by default, as the case may require, may he entered up against him, unless the Court for good cause shown shall enlarge the rule. Ho trial should be postponed unless there is some legal ground shown, or the Court is satisfied that justice requires a postponement, particularly where witnesses have behn summoned. If the case is not at issue when it ought to be, and does not stand under a rule, the Court will discontinue it for want of prosecution, as it is always the duty of the plaintiff, or his attorney, to take care that his case is put at issue by laying the proper rule. He has no standing in Court as a litigant unless he can maintain it by compliance with the law and the rules of the Court. The non pros, follows as a consequence by not having filed his pleading, as required by the rule of the Court. Evans’ Prac., 314. In the absence of any reason to the contrary appearing, the judgment of the Court must be presumed to be right. The plaintiff failing to prosecute his suit by filing the proper pleading was liable to be non prossed, and the judgment of the Circuit Court so ordering was the necessary result of his default. Judgment affirmed.