Andrews v. Mokelumne Hill Co.

Murray, C. J., delivered the opinion of the Court—Terry, J., concurring.

This case was decided at the January Term, and an opinion rendered reversing the judgment below. A re-hearing was afterwards granted, and the case now comes before us for final adjudication.

The simple question presented for our consideration on the former trial was, whether there was a non-joinder of parties plaintiff or not; it being contended that the fourteenth section of the Practice Act had introduced a new rule, and that one of several parties might maintain an action, on a joint-contract in his own name, by simply suggesting the impossibility of obtaining the consent of the others to join in the action.

Upon examination of this section we were satisfied that it was intended to apply to suits in equity, and not to actions at law. Although we understood that the whole case was submitted on this one point, it turns out upon a re-argument that the nonjoinder was not taken advantage of, either by plea or demurrer, and that the point was never raised in the Court below.

This case may be said (without any disrespect to the counsel for the respondents) to be a fair illustration of a most pernicious practice which has sprung up among the bar in many instances, of presenting cases without that care and examination of the record which is necessary to a correct understanding of the case, and afterwards trusting to the indulgence of the Court by way of a petition for a re-hearing. In fact, so common has the practice become, that the idea that a re-argument will be granted as [334]a matter of course seems generally to obtain, and petitions are filed in almost every case that is decided.

I have had occasion to- observe in the last two years that the best, and in many instances, the only arguments which were made in cases before us, were in the form of petitions for re-hearing. Such a practice does great injustice to the bar and the Court, and frequently imposes upon us double labor, besides giving to the decisions a seeming contradiction. g

We have taken this occasion to allude to this subject not for the purpose of drawing invidious distinctions between members of the profession, but because the whole bar seems to have fallen into the practice, and we wish to announce that, for the future, we will be less indulgent in such cases.