Bell v. Palea

CONCURRING OPINION BY

PERRY, J.

It seems to me to' be unnecessary to decide whether or not it was within the power of the trial judge, as a matter of strict law, to dismiss the appeal in question, and for this reason; if it was not in his power to dismiss the appeal, then the order excepted to was clearly erroneous, and the exception must be sustained; if, on the other hand, it was in his power to dismiss the appeal, still that power could at best be made use of only in the exercise of a sound discretion, and in such case, also, the exception must be sustained, for, in view of all the circumstances of this case, there was, in my opinion, an abuse of discretion in dismissing the appeal. In other words, either the court did not have the power at all, or, if it did, it was merely the power in its discretion to’ dismiss. I concur, therefore, in the conclusion that the exception must be sustained, but base such concurrence solely on the ground that, assuming that the matter is one belonging to the “discretion” class, there was an abuse of discretion.