Howe v. Elliott , 24 Wis. 677 ( 1869 )

Paine, J.

This is an appeal from an order refusing to vacate an order dismissing an appeal from a justice of the peace. The appeal was dismissed under the provision of sec. 216, chap. 120, R. S., it not having been noticed for trial by either party, within the two terms succeeding the return.

But, upon the facts stated in the affidavits of the appellant, we think the case ought to have been continued. They show an attempt in good faith to bring it to a hearing at the second term. And although this attempt was unsuccessful, the failure could not be said to have arisen from any thing worse than excusable neglect.

It cannot be said that the appellant, in order to establish a ground for continuance, was bound to excuse his neglect to bring tlie case to a bearing at tlie first term. He was in no default for not bringing it to a bearing at that term. It not having been noticed by tlie party, be bad a right to pass it with the intention of bringing it to trial at the second term.

The real question therefore is, whether, within the time allowed by law, he attempted in good faith to bring the case to a hearing; and whether, under all the circumstances, his failure was excusable. If so, he ought to be allowed a trial. The statute, while it designed to secure reasonable diligence in disposing of this class of cases, did not design to establish a more stringent rule in respect to the cause which should entitle the party to ,a continuance, than exists in relation to relief from default in other cases.

It does not appear that the facts excusing the appellant’ s neglect were presented to the court on the application to dismiss the appeal. But the record does not show any notice of that application, and it is fairly to be inferred from the affidavit of the appellant’s attorney that he had no notice of it. Such being the case, his application to vacate the order of dismissal, which was made with ¡reasonable diligence, should have received the same consideration that the facts would have been entitled to if presented at the time the appeal was dismissed. The better practice would be not to dismiss this class of cases before the end of the second term, without notice, so that if the appellant desires to show cause why the case should be continued, he may do so. But where it is done, there seems to be no remedy except that adopted here, of moving to vacate the order. This motion should have been granted.

By tlie Court. —The order appealed from is reversed, ■with costs, and the cause remanded with directions to grant the motion to vacate the order of dismissal.