Peck v. Moody ( 1870 )

Morrill, C. J.

As a general rule this court will hot revise the discretionary acts of a district judge. But when the statutes provide for interlocutory judgments, and the terms upon which the same shall be granted or refused, such judgments become not a .question of discretion to be exercised or not, as a judge may choose; hut a matter of right.

In a large, majority of. the cases in which a continuance is granted or refused, a judge is bound to exercise a sound judgment and discretion; but there are cases, when to refuse a continuance, would be a denial of statutory rights.

We consider the ease before us as one of this last named class. In consequence of being forced into a trial, the plaintiff was compelled to take a non-suit, and the court erred in not setting aside the non-suit, and reinstating the cause on the docket.

Reversed and remanded.