dissenting. — The original notice “must inform the defendant that, on or before a date therein named. *327a petition will be filed,” etc. “ If tbe petition is not filed by the date therein fixed, and ten days before the term, the action will be deemed discontinued.” §§ 2812, 2813. This last section takes the place of section 1716 of the Code of 1851, using and for or, after the word “ fixed,” and omitting the words, “ unless good cause be shown for the failure.” And now the question is, suppose the petition is not thus filed, does the failure operate absolutely and unconditionally to discontinue the action. The foregoing opinion gives the statute this constraction, and in it I cannot concur.
In my judgment this holding is at war with all those provisions of our Code of civil practice (to be found on almost every page) which allow amendments, relieve parties as to time and manner of pleading, at the earliest moment possible, from the consequences of mistakes, oversights, accident or misfortunes, and retains their causes upon proper terms as to costs, so long as they hafe an apparent substantial ground ■ for relief. Then, too, it gives but little if any — or if any, an improper effect to the word “ deemed.” The statute is not that the action will thereby, or as a consequence, or from that time, be discontinued. The meaning is that a defendant, or the court if nothing further is done, may conclude or preswne or regard that plaintiff has abandoned his action. Suppose this petition is filed the next day, however, and defendant is at once advised or has immediate knowledge of it, and the most abundant cause is shown for the omission, can the court any longer regard the action discontinued; and should the plaintiff, at the hazard of losing possible securities, and, may be, of being barred of his action by the operation of the statute of limitations, be compelled to commence a new action, when the defendant has possibly been neither surprised nor prejudiced ? This, however, would or might be the result of the foregoing holding. *328And yet wo are positively required to construe the provisions of this Code and all proceedings under it, liberally, and with a view to promote its object, and assist parties in obtaining justice. § 2622.
Now, I concede that, if a defendant should not appear, and the petition is filed after the date fixed in the notice, it would be the duty of the court to refuse a default; for the defendant was not bound to know that it was thus filed. If, however, the plaintiff has shown diligence, and rebuts all presumption of intention to trifle with the court or its powers, then let the cause be continued that defendant may b.e notified, but do not discontinue; for plaintiff shows in such a case affirmatively, that he has not abandoned the action; that it should not be “ deemed disGonúnuedP And so, if defendant should appear and claim anything for such failure, let the cause be continued or otherwise disposed of according as the circumstances and the very right of the matter may dictate. These views are in accordance with the whole spirit of our practice; harmonize with the language of the section under consideration, while those of the majority deny that a party shall be heard, whatever his excuse, and though the defendant has been neither surprised nor injured. For these, reasons, without extending the argument, I do most respectfully dissent from the foregoing opinion.