Kent v. McEldery , 9 Gill 493 ( 1850 )

Magruder, J.,

delivered the opinion of this court.

If the plaintiff in the court below, wished to have a trial or judgment at the second term, he ought himself to have complied with the rules of the court. Indeed he had it in his power to file his declaration when he instituted the suit, or he might have filed it during the first term, and have laid the defendant under a rule to plead by the rule day of the court., in this case by the 20th day of September, 1849. If either course had been pursued by him his right to a trial or judgment, (no legal cause for a continuance being shown by the defendant,) during the next or second term, could not have been questioned.

Because he did not pursue either course before spoken of, the defendant laid him under a rule to declare, by the next rule day or 20th of September. With this rule he failed to comply, but filed his declaration some weeks afterwards. He then offered a declaration, to which no objection was made, other than it enabled the defendant to delay his plea until the next rule day. This was refused to him, and thus it was required of the defendant to plead and prepare for his trial, in a very few days after the filing of a declaration, which, for the first time, disclosed to him the plaintiff’s cause of action.

The effect of giving to the [defendant the time which he asked would have been a continuance of the cause, which it is said is forbidden by the act of 1829, ch. 166. But has the plaintiff any cause to complain of this? Why did he violate the rule of court, which gave to the defendant a right to a. nonpros.? He called upon the court to sanction this violation of its rules, to extend the time allowed to him to file his declaration. This, it is understood, the court can do, provided he will consent to try, or continue the cause at the option of the defendant.

If the plaintiff could, in this suit, withhold his declaration, and thereby all knowledge of his cause of action, as long as he did, and yet claim a trial in the course of that term, he might have withholden it until the court reached'the-ease when going over the docket the last time, and then have insisted upon a plea or judgment instanter. Indeed, according to the reasoning of counsel, a judgment ought to have been given to him, although no declaration wTas then tendered. As to this being an undisputed case, and for that reason the plaintiff had a right to a judgment, all that w7e can know is, that courts must learn that the from defendant, and not from the plaintiff, and must be content to know it, only when the defendant has had a reasonable time to determine what defence he ought to make.,

A plaintiff who, after taking six or eight months to find out his cause of action, then violates the rules of court, is a person. in default, and if he asks as a favor, that his nar be still received, must, claim nothing of a defendant that term. It is most unreasonable in him to expect that the defendant will be prepared for trial in two or three days after the plaintiff’s claim is stated to him. Such a plaintiff has no reason to complain that he cannot get a judgment the second term.

In this casé, until the declaration was filed, the defendant could not tell whether the plaintiff claimed of him the amount of an account, or of a promissory note, or damages in trover, or for slanderous words, or cither cause of action which will sustain an action on the case. While he is thus left in ignorance of the plaintiff’s cause of action, it would havé been most unreasonable to require him to have in attendarice the witnesses by which he' (night defeat all, or indeed any one of these claims.

We do not think that the rule to plead was laid in order to continue the cause, when it was reached in going over thé docket the last term. The court had no more right to require a plea of the defendant at the timé it did, and whén the plaintiff was in default, than to have required the latter to file his declaration instatiter, in order that the defendant might be prepared to demand a trial or nonpros, the second term.

JUDGMENT REVERSED WITH COSTS, AND PROCEDENDO.