Bensley v. Ellis

Rhodes, C. J., delivered the opinion of the Court:

. The action of Bensley v. Ellis, which was pending in the Twelfth, District Court, was, on the 8th of January, 1866, ordered to be dismissed. On the 7th of July, 1866, the order of dismissal was, on the plaintiff’s motion, set aside, and the cause was restored to the calendar; and, on the 13th of January, 1869, the last order was, on motion of the defendants, set aside, leaving the judgment of dismissal in force. The plaintiffs appeal from the last order.

The plaintiffs attack the order of January 8th, 1866—the judgment of dismissal—on the ground that it was void: First-—Because the action had previously been continued for the term. Second—Because the judgment was rendered, without any motion therefor by either of the parties. Third —Because the January Term of the Court was not legal— the term having commenced on the first day of January, and the Court not having been held on that day, and not having been adjourned by the Sheriff or clerk to the second day, the term lapsed. These points, and ‘particularly the third, have been elaborately discussed by counsel, but a decision of them is not essential to a solution of the questions necessarily involved in the appeal. If the judgment of dismissal- was void, for either of the grounds urged by the plaintiffs, the order of July 7th, 1866—assuming that the motion came in due time—was legal and proper. If the judgment was not void, but if the attorneys for the respective parties understood that the cause, when called on the calendar, was continued for the term—and it is .clearly shown [313]that they so understood it—then the order was fully justified by Section 68 of the Code, and was right. The only question in respect to the order which is necessary to be noticed is, whether the plaintiff’s motion, on which the order was granted, was made in due time. The motion was made on the 5th of July, 1866, after the expiration of the term within which the judgment was rendered.

Section 68, under which the motion was made, was amended in 1866, and the amendment took effect June 2d, 1866. The amendment consisted of a re-enactment of the original section, and the addition of a clause providing that “when, for any cause satisfactory to the Court, or the Judge at chambers, the party aggrieved has been unable to apply for the relief sought during the term, at which such judgment, order or proceeding complained of was taken, the Court, or the Judge at chambers in vacation, may grant the relief upon application made within a reasonable time, not exceeding five months after the adjournment of the term.” The question as to whether the motion was in time, depends upon whether this section was intended to have a retrospective operation.