Fowble v. Walker ( 1829 )

Opinion of the court,by

Judge Hitchcock:

Notwithstanding the variety of facts which are spread upon the record in this case, and the variety of errors assigned, it seems to-the court that the principles upon which it must be decided, are confined to a very narrow compass. Had the plaintiff shown cause against the motion which resulted in the order of February 26,1828, while that motion was pending; had the court of common pleas adjudged the causes thus shown insufficient, and had the plaintiff tendered a bill of exceptions, spreading the same facta upon the record, as they appear upon the decision of his own-motion of the 27th of February the question presented would have been different, and probably of more difficult solution. We should then have been under the necessity of inquiring into the validity of that order. The arguments of counsel, as well as the assignment of errors, seem to be predicated upon such a state of case. An examination of the record shows an entirely different case. It ia the proceedings and decision upon the motion of the 27th of February *made by Fowble himself, and not upon the motion made by Walker, at the November term, 1827, of the court of common pleas, which is said to be erroneous. Fowble, although in court, did not show cause against the motion first above referred to; he made no objection to the order; he lay back until the order was made, and subsequently submitted his own motion to the court, to set aside or vacate this order. The only question which can now be examined is, whether the court erred in refusing to sustain this motion.

Motions of this description, or those somewhat similar in their nature, are frequently made, and are always addressed to the sound discretion of the court. By sound discretion, I do not mean an arbitrary discretion, but such a discretion as may be exercised without the violation of any principle of law. Parties, not unfrequently, in the progress of a cause, lose advantages in consequence of their own negligence or laches, to which they may or may not. be restored on motion, at the discretion of the court. If restored,, it must be upon such terms as the court think proper to impose. Motions to set aside nonsuits or defaults, for new trials, to amend pleadings, etc., are within every-day practice, and it is discretionary with the court to grant or refuse them. Where, however, an advantage has been lost to a party in consequence of sheer negligence, it is rare, indeed, that a court will on motion grant relief. For instance, a defendant neglects to plead, and suffers judgment to go by default. It must be an extraordinary case, that will induce the court to set aside the default, unless the defendant offers some plausible excuse at least for his neglect.

The motion of Fowble is not so far dissimilar to those referred to, but that the same principle ought to govern in the settlement of it. Had he had no day in court, he would have appeared under more favorable circumstances. But he had a day in court, and it was owing to his own laches that he was deprived of a full investigation. He neglected to show any cause against the motion of Walker, until that motion was disposed of by making the order of 26th February. He made no excuse for this neglect, and on account of this neglect, the court not only refused to sustain, but overruled his motion of the 27th February. It was within the discretion of the court to grant or refuse it, and we are not prepared *to say, that in the exercise of that discretion, any principle of law was violated, that any error was committed.

The decision of the court of common pleas is affirmed.