Owings v. McKee

HaNBY, J.,

delivered the opinion of the court.

At the May term, 1855, a demurrer to the declaration was sustained, and the plaintiff was allowed leave to amend. At the same time, a sixty days’ rule, for security for costs, was granted. .No further steps appear, by the record, to have been taken until May term, 1857, when the defendant below moved the court to strike the case from the docket, and at the same time the plaintiff moved for leave to give security for costs, and to file an amendment to the declaration, which was offered. The court granted the defendant’s motion, and struck the case from the docket.

It appears, by the bill of exceptions, that, although the order to make the rule for security for costs absolute, had not been entered on the minutes of the court, such an order had been actually made, as appeared by the notes made by the judge upon the docket. This, though not sufficient to show technically of record, that the rule bad been made absolute, was a sufficient reason why tbe court, wbicb must be presumed to be cognizant of tbe steps and course of proceedings which have transpired in a cause, should refuse further indulgence to a negligent party, and should carry into effect an order which, within the knowledge of the court, had been made at a previous term, but had not been entered of record. Certainly a knowledge of these facts, on the part of the court, together with the fact that the plaintiff had, for two years, failed to avail himself of the leave granted to amend, was a sufficient reason why the court should not, at so late a day and after a motion to dismiss the case had been made by the defendant, allow an application to file an amended declaration.

Let the judgment be affirmed.