State ex rel. Butler v. Kitchen , 41 N.J.L. 229 ( 1879 )

The opinion of the court was delivered by

Dalrimple, J.

At the September Term, 1878, of the Hunterdon pleas, the parties, by their attorneys, agreed that the trial of this appeal should be postponed for the term. The court refused to recognize this agreement unless it could be shown that the parties personally entered into or authorized it. 'This was not shown, and the court then, of their own motion, dismissed the appeal. There was no failure of the appellant, at any rate as between him and the appellee, to prosecute the appeal according to law. Nor do I see any reason why the agreement of the attorneys, whose employment on either side was not disputed, should have been disregarded. Although not attorneys of record, they were the agents and counsel of' their respective clients, and whatever they did in •conducting the case was as binding on all concerned as if done by the parties personally. To hold otherwise would be to-overturn a settled practice of many years. But in this case it was not alleged, either by the appellee in person or otherwise, that the appeal should be dismissed for want of prosecution. It was, therefore/ error to so hold and render final judgment in favor of the appellee without his asking it. The judgment of dismissal is a final judgment against the appellant, renders the appeal bond liable to prosecution and. virtually affirms the judgment below, however erroneous it may be. It appears that there was an agreement in writing,, at the term at which this appeal was dismissed, entered into by a large number of tlie attorneys of the Hunterdon barj that the appeals in which théy were concerned should go over-by consent to the next term. The appeal now in question-was embraced within this written agreement. But I fail to-see any reason why this writing should not have been regarded by the court, nor how the court could of its own motioii legally dismiss, for want of prosecution, any case to-which the agreement applied. If the^ court had convened,, and was ready to try the cases, and the parties, for their own convenience, saw fit to postpone the trials to another term, I think the most the court could have done was to make such order for the future disposition of the cases as would have-been right and proper, having regard to. the rights of the-public and other litigants.

The peremptory mandamus prayed for is allowed, without costs.