Angel v. Plume & Atwood Manufacturing Co.

Mr. Justice Scott and Mr. Justice Sheldon,

dissenting:

The statute provides that causes “shall he tried or otherwise disposed of in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct.”

The court below, for what it deemed good and sufficient cause, directed that the trial of the case should take place out of its order on the docket. As we regard it, there was the express warrant of the statute for so doing. We fail to perceive wherein it was in contravention to the 37th section of the present Practice Act. Had the defendant filed his affidavit of a defense upon the merits, as in the case of Fisher v. National Bank of Commerce, decided at the present term, the action of the court might have been regarded as contrary to the spirit of that section. But here, the defendant filed no affidavit whatever, in regard to the merits of his defense.

We do not understand that, by the constitution, courts are debarred from adopting their own rules of practice, or that such rules of practice must be uniform in the courts; the restriction of the constitution in that respect being only, that the practice of courts so far as regulated l)y law shall be uniform.

The 37th section of the present Practice Act relates only to the taking of judgments by default, enlarging the rule in that respect, it providing that where the plaintiff shall file with his declaration an affidavit of the amount of his claim which is due to him, he shall he entitled to a judgment as in case of default, unless the defendant shall file with his plea an affidavit of merits. It does not purport to be in any way a regulation as to the trying of causes with regard to their position on the docket.