Donallen v. Lennox

• Decision Date: 03 April 1838
• Citation: 36 Ky. 89
• Parties: Donallen v. Lennox.
• Court: Kentucky Court of Appeals

36 Ky. 89

Donallen v. Lennox.

Court of Appeals of Kentucky.

April 3, 1838

FROM THE CIRCUIT COURT FOR JEFFERSON COUNTY.

Mr Duncan for plaintiff.

Mr Hewitt for defendant.

OPINION

EWING JUDGE:

Statement of the case.

Mary Lenox brought suit against Donallen for a breach of marriage promise; in which she declared in two counts--one on the consideration of mutual promises; the other on the like consideration, together with the consideration of an agreement on her part, to compromise a suit in chancery which she had brought, as the executrix of her deceased husband against Donallen which was agreed to, and the suit disposed of accordingly, whereby the estate had lost a large sum of money, to-wit: about four thousand dollars.

On the calling of the cause for trial, on Thursday of the last week of a long term of the Court, the counsel for Donallen objected to a trial, as well as filing pleas, on the following grounds: He made affidavit that, some three weeks before, Donallen had applied to him to know if his cause could be tried at that term, and he informed him that, from the crowded state of the docket, he did not think it possible that it could be reached; and that another attorney of the Court had given him the same opinion at the same time, and that, under that belief, Donallen had left the Commonwealth, on business, without making any arrangement or preparation for his defense other than speaking to an attorney to appear for him, and had not returned. He also showed to the court, that this cause had been reached bye an irregular call of the docket, whereby many contested causes had been passed over, and not tried, continued, or disposed of, in which the parties were demanding trials, and which, if tried, would have consumed the whole term.

His objection was overruled by the Court, and he was compelled to plead, and forced into a trial in the absence of his client. And this presents the first question and the one deemed most material to be decided by this Court.

Decisions of inferior courts made in the exercise of their discretion in matters of practice, are not overruled upon slight grounds; but when they violate law, or the essential rights of parties, they may be reversed.

The law directs how causes are to be docketed, and the time for pleading. They should be called in regular succession--not taken up out of turn; and no party should be required to go to a trial or to plead, until his cause is reached in the regular progress of business; the older causes being tried, or continued, or deferred to the end of the docket.

When, in consequence of an extraordinary number of continuances, a surprising progress is made in a docket, the court should grant reasonable indulgences to litigants caught unprepared.

A def't moving for a new trial, upon the ground that, in consequence of causes being merely passed over, he was caught unprepared, and ruled into trial unreasonably, need not show that he had made any preparation, or that a different result would probably occur on another trial.

Though this Court should not, upon slight grounds, interfere to control the discretion in matters of mere practice, to be exercised by the inferior courts, in the control of suitors, the preparation of causes for trial, the order of trial, that discretion should not be exercised in violation of law, or in such manner as to endanger materially the rights of litigants, or to defeat the ends of justice.

The law has prescribed the manner in which causes are to be docketed, and the time when pleas are to be filed.

They are to be tried in the order in which they stand on the docket. Litigants are instructed to prepare for...