Davis v. Jones , 4 How. Pr. 340 ( 1849 )

Harris, Justice.

The defendant’s counsel relies upon the provisions of the 173d section of the code, as authorizing the relief he seeks. That section does, indeed, vest in the court a very ample discretion in relieving a party from the consequences .of his own mistake, inadvertence, surprise, or excusable neglect. Under the operation of the salutary provisions of that section, the instances are now, happily, rare, in which a party can claim a vested right in an omission or blunder of his adversary. When satisfied that it will tend to the furtherance of justice, the court is called upon, in the spirit with which this section was enacted, to relieve the party from the consequences of his own error, in a matter of mere practice, upon such terms as shall be just. But in this case, I regret to findthatlhave no power to reheve the defendants from the consequences of their own misapprehension of the law. This court has no jurisdiction over the proceeding. There is no suit pending here. The 139th section of the code declares that, from the time of the service of the summons in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. Here, it is obvious, there has been no such commencement of an action as will give the court jurisdiction over the proceedings. Had I the power, I should regard it a proper case for granting relief upon terms. But there is no action pending in this court; and, of course, there are no proceedings for this court to control. The motion must, therefore, be denied; but, under the circumstances, it must be without costs.