The Opinion of the Court was delivered by
Young, J.This was an action of Ejectment, brought by Riggs, the plaintiff in error, against Savage, the defendant in error, to the November term of the Warren Circuit Court 1843, to recover possession of the south east quarter of section four (4), in township eleven (11) north, range three (3) west, of the fourth principal meridian, in Warren county, containing one hundred and sixty acres. The defendant pleaded “not guilty” at the same term, a trial was had by a jury at the June term 1844, a verdict of “not guilty” found, and a judgment rendered in favor of the defendant for costs.
At the November term 1844, the following order was made on motion of the plaintiff’s attorney, to wit: “This day came the plaintiff by his attorney, and on his motion it is ordered, that this cause be reinstated on the docket, it being proven to the satisfaction of the Court that the costs have been paid.”
At the November term 1845, the defendant’s attorney moved the Court to strike the cause from the docket, and the plaintiff’s attorney at the same time entered a cross motion for leave to amend the record. The plaintiff’s cross motion was overruled, the defendant’s motion to strike from the docket was sustained, and the cause stricken from the docket accordingly. The plaintiff’s attorney then moved to try the cause, notwithstanding the same had been stricken from the docket, which motion was also overruled by the Court, and judgment rendered against the plaintiff for costs.
To these'several decisions of the Court, exceptions were taken by the plaintiff’s attorney, and the following are now assigned as causes of error in this Court, to wit:
1. The Circuit Court erred in overruling the plaintiff’s cross motion to amend the order made at the November term 1844, reinstating the cause upon the docket.
2. . The Court erred in sustaining the defendant’s motion to strike said cause from the docket.
3. The Court erred in refusing to sustain the plaintiff’s motion to try the cause after the same had been stricken from the docket, and in rendering judgment against the plaintiff for costs; and
4. In giving judgment for the defendant, when, by law, judgment should have been rendered for the plaintiff.
The statute regulating the action of ejectment provides, among other things, “that the Court, in which judgment shall be rendered, shall at any time within a year after the rendition of such judgment, upon the application of the party against whom the same may be rendered, his heirs or assigns, and upon the payment of all the costs and damages recovered thereby, vacate such judgment and grant a .new trial in such cause.”
In this case, it appears that the costs were paid, and the cause reinstated on the plaintiff’s motion within the year; but no application was made to vacate the judgment and grant a new trial, as required by the statute. This omission the plaintiff’s attorney sought to remedy by his cross motion to amend the record at the November term 1845, but we are of opinion, that the application to amend was addressed to the sound discretion of the Court, and that a refusal to grant the amendment cannot be assigned for error. This doctrine is fully recognized and settled by several former adjudications in this Court, and especially in the cases of Ogden v. Bowen, 2 Scam. 33, and Harlow v. Scott, Ib. 66. Had the proper application been made to the Court to vacate the judgment at the time the cause was reinstated upon the docket, the new trial would have been granted as a matter of course. But this not having been done until the November term 1845, the Court very properly decided that the motion came too late. The old law maxim is, “ Vigilantibus et non dormientibus jura subveniunt—“the laws assist the diligent, and not those who sleep upon their rights;” and notwithstanding the law made ample provision for the plaintiff, and he well performed his part by the payment of the costs in time, his attorney has slept upon his rights, and lost by his negligence an important privilege, which would doubtless have been secured by one more careful and attentive to his client’s interest.
It is also objected, that the Circuit Court did wrong in awarding costs against the plaintiff, upon striking the cause from the docket, and overruling his motion to vacate the judgment, and to try the cause after it had been stricken from the docket. We can perceive no error in this. The judgment for the costs upon the motions submitted and decided, have no necessary connection with the original judgment for costs in the ejectment suit, which had been previously paid by the plaintiff, before the cause was brought back upon the docket.
It is nevertheless our opinion, that the plaintiff may still contest his rights by another trial, under the latter clause of the 30th section of the Ejectment Law, which provides, that “the Court upon subsequent application made within one year after the rendering of the second judgment in said cause, if satisfied that justice will thereby be promoted, and the rights of the parties more satisfactorily ascertained and established, may vacate the judgment, and grant another new trial, &c;” if application be made- for that purpose in the time prescribed and the Circuit Court, upon showing cause, shall be of opinion that justice will be promoted, and the rights of the parties more satisfactorily ascertained and established, by vacating the judgment, and granting a new trial.
Judgment of the Circuit Court affirmed with costs, and the cause remanded for further proceedings, not inconsistent with this Opinion.
Judgment affirmed.