Peycke v. Keefe

Searls, C. This is an action to recover from the defendants, as copartners under the firm name of D. Keefe & Co., the sum of four hundred and forty-three dollars and eighty-seven cents as a balance for money advanced by plaintiffs to defendants.

Defendant Keefe answered, averring that he was the sole member of the firm of D. Keefe & Co., denied the indebtedness to plaintiffs, and by way of cross-complaint, upon the facts therein stated, demanded a judgment against the plaintiffs for one hundred and thirty-six dollars and thirty-five cents.

Pending the case, and before a trial on the merits, such proceedings were had that, on.the fourth day of April, 1893, the court below, on motion of counsel for plaintiffs, struck out the answer and cross-complaint of defendant Keefe, and entered judgment in favor of plaintiffs as prayed for in their complaint.

Defendant Keefe moved the court on affidavit and upon the papers on file to set aside the judgment entered against him, and to restore his answer and cross-corn, plaint. This motion was denied by the court June 20, 1893.

On June 26,1893, defendant Keefe took and perfected an appeal to this court from the judgment and order refusing to set the same aside, etc.

Thereafter, and on the thirtieth day of October, 1893, the court, upon its own motion and without any application therefor or notice thereof, set aside the judgment against defendant and restored his answer and cross-complaint.

Plaintiffs, in due time, appealed from this last order, [214]and, as defendant Keefe has never filed his transcript on appeal in this court, plaintiffs also move to dismiss this appeal.

The motion to dismiss the appeal of Keefe should be granted.

Touching the appeal of plaintiffs from the order setting aside the judgment and restoring the answer, etc., we are of opinion, from the showing made by the bill of exceptions: 1. That the court was justified in making the order striking out the defendant’s answer and rendering judgment against him, upon -the ground that he willfully refused to give his deposition -in the cause; 2. But these matters are so far within the discretion of the trial court that, inasmuch as it is the policy of the law to favor a fair and impartial trial of every cause upon its merits, we are not at liberty, under the circumstances of this case, to reverse the action of the court looking to that end, provided always the court below possessed the power to make the order at the time and in the manner pursued by the court.