Wilkes v. Phillips , 37 Ga. 588 ( 1868 )

Harris, J.

As far back as the year 1851, it appears that the plaintiff in error commenced his suit in equity, to set aside a deed, as having been fraudulently procured from him, and, upon the trial of the case, a decree was rendered in his favor. The defendant entered his appeal, and, during the war, the appeal was continued, by consent, from term to term, until the solicitor of complainant, Mr. Hook, was elevated to the'bench. Judge Hook was on the bench from February, 1863, to the Spring term of 1867. During which period, no effort appears to have been made, by appellant, to procure a trial, the Judge offering, at all times, to obtain the Services of another Judge, whenever the parties were ready. At October term, 1867, the solicitor of complainant having returned to practice at the bar, was, in the discharge of professional duty, called to another Court; but was represented in Emanuel, where this cause was pending, by General A. R. Wright, and other lawyers, who sought to have it continued on various grounds, amongst which was the absence of the complainant, an illiterate, ignorant old man, who came to the Court on the first day of the session; but who, through mistake, or under the idea, as his solicitor was not.in attendance, that the case would not be tried, left the Court, for his home in the country, and did not return; and that, without his presence, the counsel representing Mr. Hook, could not safely go to trial. The motion to continue, upon all the grounds, was overruled by the presiding Judge.

That all causes should be brought to trial, at as early a period as practicable, without producing injustice, will be conceded to be desirable; and this might be accomplished by a Court setting its face sternly against that loose practice, which obtains, in most of the circuits, of tolerating what are termed “ general continuances.” When closely scrutinized, they are frauds on the law, and are productive of immense evil. If these were cut up by the root, permitted, under no circumstances, cases could not be spun out until, like this, they become hoary with age. But, when a practice has been established, by long usage, it should not, however objectionable in itself, be suddenly arrested, and, thereby, made to work an injustice. A change of practice should be made to operate prospective!y. That this case had lingered too long on the docket, is undeniable; but, having thus lingered, and been taken without the rules of law, by repeated general continuances, the case should not have been dismissed, notwithstanding the insufficiency of the grounds on which a continuance was aske^, hut should have been placed wider a rule, entered on the minutes to try at a subsequent term, or dismiss. It would have been a proper rule to have been made at the instance of a party who desired the litigation to be brought to an end. Such rules should' be made by the Judges themselves, with a view to the proper disposition of the business’ of the Court.

The question properly'before the Judge below, for decision, was not the sufficiency of the showing for continuance; but what did the ends of justice, in a case so old, and which had been prolonged from term to term, for so many years? without any readiness whatever, to try by either party, having been exhibited, require of him, in the exercise of a discretion, for a case not within any prescribed rule. Did the ends of justice require that an ignorant old suitor, who had been wronged by a fraud, should be mulcted in the costs, by the dismissal of his bill in equity, and be obliged to commence again, and go over a tedious course, before he could hope to reach the same point at which his case stood, simply because he had left.the Court under the circumstances mentioned? We think not. If there was fault anywhere, it was not with him. But even had he been present, and not prepared, fully, to try, he should not, from the past history of the case, been forced then to try, but been placed under rule to try at a subsequent term, or dismiss. The defendant, by the verdict of a special jury, had beed pronounced to be a wrong doer, presumptively, therefore, he was one. He was represented by able and vigilant counsel, who was in attendance. That counsel must have perceived the great advantage that he had, in going to trial at that time. He was bnt performing his duty, in availing himself of whatever advantage the law gave him.

Seeing this, and the whole matter being within the control of the Judge, in the exercise of a sound discretion, he should not have dismissed plaintiff’s suit. Let it be reinstated.

Judgment reversed.