The petition in this ease was not filed on the day fixed in the notice, nor on the day of the service of the same. No cause was shown for the failure. The cause was deemed discontinued. Bid the court err? I think not. Why ? Because the Code provides by section 1715, that the original notice must inform the defendant, “that on or before a certain day therein named, a petition will be filed in the office of the clerk,” &c. The form of this original notice, given in section 2518, commences as follows: “You are here*83'by notified that there is now [or that on or before the--day of-there will be] on file,” &c. Section 1716, provides, “ that if the petition is not filed by the time thus fixed, or if not filed ten days before the first day of the next term, the action will be deemed discontinued, unless good cause be shown for the failure.” But a majority of the court construes this section to mean only, that if the petition is not filed ten days before the first day of the next térm, the action will be deemed discontinued, unless, &c. To this construction, I cannot accede; yet I .dissent reluctantly, on account of the high estimation in which 1 hold the ability of my associates to determine correctly in the premises, and the more so, from the fact of the peculiar advantage possessed by one of them, in becoming familiar with the spirit and meaning of the 'Code. ^
It cannot be denied, that the court below, -in determining this cause, acted within the letter of the statute. Unless we blot out, and entirely disregard the first clause of section 1716, we must sustain that decision. We should not discard a plain provision of statute, unless its spirit manifestly contradicts the letter. "We should so construe statutes, that every part may stand, be operative, and have a meaning, unless, by so doing, we are led to an absurdity so gross, that it forbids the conclusion, that the legislature ever so intended. These are every day rules of construction. To allow courts to construe statutes by any less stringent rule, is to allow them to set up their own notion-of what the law ought to be, and then warp the statute to sustain that notion. It matters not, whether in my judgment, or the judgment of this court, there is a more reasonable rule, that the legislature might have adopted. We have no right to assume legislative functions, and attempt to amend the law, either by blotting out, or adding to it. Our province is to pronounce what the law is, and not what it ought to be.
Before, coming to this conclusion, that the legislature has enacted a useless clause in this statute — one that is inoperative, and tends to confusion — I must cast about, to see if some construction may not be put upon it, whereby it may *84all stand, witbont at tbe same time leading to any sucb absurdity. Let ns suppose, then, that the legislature intended to provide, what the construction put upon the statute by a majority of this court says it has provided, namely, that unless a petition is filed ten days before the first day of the next term of the court, the cause shall be deemed discontinued, unless good cause be shown for the failureand to provide in addition to this, that if the petition is not on file on the day fixed in the notice, for having it filed, the cause shall also be deemed discontinued, unless like cause is shown. In other words, that you may fix the time for filing your petition at any time, provided, that it is ten days before court, but you must have it filed at the time you fix, or show good cause for failing, or your cause will be deemed discontinued. Adopt such a construction, and the statute all stands. Does this involve any absurdity ? "Was it not within the province of the legislature to fix such terms ? Yea; so far from their being unreasonable, are they not consonant with justice and fair dealing ? If I am notified that a petition will be on file against me on a certain day, and no such petition is on file on that day, may I not fairly conclude that the party has abandoned his suit, particularly, if the statute has before announced, that this presumption shall arise? And if the construction I contend for, is the true one, it has announced that this shall be the presumption. Is not the day fixed in the notice for filing the petition, in the nature of a rule day of the plaintiff’s own selection, on which, if he does not plead, he should be deemed in default ? Is there anything unreasonable in requiring that if in default, he should show good cause, before resuming his suit ? So far from being unreasonable, such a requirement is to my mind most consonant with reason and justice. I conclude, therefore, that the legislature desired to adopt just such a rule. At least, it is not so unreasonable as to involve an absurdity so gross, as to forbid the conclusion that it so intended. I cannot, therefore, concur in the construction which abrogates the first clause of this section of the statute.
Quere ? What in the nature of things, would be a good *85cause, if tbe defendant is notified tbat there is a petition now ■on;file, and none is,in fact filed?
Judgment reversed.