Marsh v. Morse

Scott, Judge, delivered the opinion of the court. 1. There is no doubt that during the term of a court, at which any proceeding is had, the court may, for sufficient cause, vacate or set aside that proceeding. It is obvious that the vacating of a continuance and ordering a trial of the cause may produce surprise, and operate seriously to the prejudice of a party whose cause has been continued. A court would hardly be warranted in taking such a course without strong reasons ; when, for such reasons, it is done, a party should be served with an authentic copy of the order. It would be dangerous to trust to rumor or any other source of information than a service of the copy of the order, to affect a party with notice that the continuance has been set aside. He then could appear and show cause why a trial should not be had at that time. We cannot say that the trial of this case, under the circumstances, was warranted by a sound discretion. Judge Eyland concurring, the judgment will be reversed, and the cause remanded ; Judge Gamble not sitting.