Person v. Nevitt , 32 Miss. 180 ( 1856 )

Handy, J.,

delivered the opinion of the court.

. This was a bill filed by the plaintiffs in error, in the District Chancery Court at Natchez, in the nature of a bill of review, for the purpose of setting aside the dismissal of a previous suit in that court, brought by the plaintiffs in error against the defendant. The grounds upon which the relief is sought are, in substance, that at two terms of the court next preceding that at which the dismissal took place, the defendant applied to the complainants’ solicitor for a continuance of the cause, in order to have an opportunity of effecting a compromise with the complainants, which propositions were acceded to, and continuances granted at both terms, when the case was ready to be set for hearing. At the next term after the last continuance, and after the solicitor of the complainants had left the court — nothing further being done in the cause — ■ the defendant caused a motion to be entered for the dismissal of the suit for want of prosecution; and the motion was granted on the ground that no step appeared to have been taken in it for two terms preceding. The bill alleges that neither the complainants nor their solicitor knew of the dismissal until after the time had elapsed, and when it was too late to have the cause reinstated; and that no steps were taken at the two terms preceding the dismissal, because of the promise made by the solicitor, to Nevitt, to let it lie over as it then stood, for the purpose of enabling the defendant to'compromise it; and that a new suit, upon the cause of action, is now barred by the Statute of Limitations. The prayer is, that the order of dismissal be set aside, and the cause reinstated.

The defendant demurred to the bill, and answered as to the charge of fraud; and the demurrer was sustained and the bill dismissed.

We think it clear that, upon the facts stated in the bill, the appellants were entitled to the relief sought.

It appears by the allegations of the bill, that the two continuances, previous to the term at which the dismissal took place, were granted at the request of the defendant, and, as must be presumed, for his benefit. If the continuances were granted with the view of giving the defendant an opportunity to compromise the debt, as is alleged, that was certainly a good excuse for the failure to set the case for hearing, or to take any other step in it. The complainants’ solicitor had the right to act upon the assumption that the propositions made by the defendant were made in good faith, and would be acted upon by him accordingly. The defendant was, therefore, the cause of no steps being taken in the cause at the terms when continuances were granted; and if these facts had been stated or made known to the court, the court would not have been justified in dismissing the suit. If there was any fault in the due and proper prosecution of the suit, it was occasioned by his own conduct.

The action of the court in dismissing the bill was, therefore, founded upon a mistake of fact, which it was the duty of the defendant to have made known to the court. And if the facts stated in the bill be true, they show a case of fraudulent concealment on his part which must debar him of the advantage which was thereby obtained to the complainants’ prejudice; and it falls, within the principle recognized in Webster v. Skipwith, 26 Miss. R. 341.

The decree must be reversed, the demurrer overruled, and the defendant required to answer within sixty days.