I dissent from the order denying a rehearing and from the judgment. I entertain no doubt that the superior court had power to allow the motion to be renewed, and the fact that it did allow it to be renewed excludes the presumption that it was denied upon the ground of laches. It seems much more probable, in view of all the circumstances, that it was allowed for the purpose of enabling the defendant to make a full presentation of the merits of its demand in case of an appeal. The motion was denied in the first instance without prejudice, and was promptly renewed. It was again denied, as the record shows, for reasons stated in a written opinion. That opinion is not set out in the bill of exceptions, but is quoted in appellant's brief. It shows that the motion was denied for the sole reason that defendant's affidavits did not contain a specific denial of the allegation in the complaint that the contract price was made payable "whenever and wherever demanded." The application for leave to renew the motion was based upon the ground that it had not been heard upon its merits, and was supported by affidavits denying in terms the allegation as to the time and place of payment. No counter-affidavits were filed in support of the complaint (which in this particular could be *Page 403 held to state merely a legal conclusion) and if the allegation of the complaint was true in fact, as contradistinguished from a legal conclusion, the plaintiff was called upon to show by affidavit that the contract contained those express terms — a conclusion that did not necessarily follow from the allegation in the complaint. If this view is correct, the only ground upon which the motion could be denied was disproved, and the order of the court can be sustained only upon the supposition that the defendant was held guilty of laches. But there were no laches unless injury had resulted to the plaintiff or would result from the delay, and there was neither showing nor suggestion of any possible injury.
A serious consequence of the ruling denying defendant's motion is that, owing to the mistake of counsel in supposing that their appeal would stay proceedings in the action, a default judgment was taken, and all opportunity of presenting the meritorious defense alleged has been cut off. (See opinion affirming default judgment.)
I cannot regard with favor technical rulings upon questions of procedure which result in condemning a party without a hearing, even when they are imperatively required by the terms of some law. In this case I think the ruling — so far from being necessary — was erroneous.