Williams v. Harper, 5 N.C. 401, 2 Car. L. Rep. 401 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 401, 2 Car. L. Rep. 401

Williams v. Harper.

This cause was tried before Seawell J. at Warren Superior Court, where, on its being called in due course on the second day of the term, and the plaintiff failing to appear, he was nonsuited. In the course of the same day, he came into court and moved for a new trial, upon an affidavit which stated in substance, that he had attended the preceding day, and went home at night for the purpose of procuring the attendance of a very material witness, who had been subpœnaed for him; that on Tuesday morning he called upon this witness, whom he found unable to attend, from the effects of a severe illness, and the deponent then hastened to court, where he arrived too late, but as soon as he well could, considering the distance of his abode and the delay occasioned by his calling on the witness.

The Judge granted a new trial, upon the plaintiff’s paying all the costs, from which order, as to the costs, he appealed, to this Court.

The case was submitted.

Taylor, C. J.

The Court cannot perceive, in the order appealed from, any thing unusual or improper; for it seems to them perfectly reasonable, that the plaintiff should pay the costs of the nonsuit, occasioned solely by his absence when the cause was called. If upon the mere motion of the party, a new trial could be had under such circumstances, a great portion of the time of the Court would be consumed in awarding nonsuits and reinstating causes; for that sort of punctuality required from suitors, and which is so necessary to the regular dispatch of business, cannot well be enforced, unless the neglect of it be attended with some inconvenience and loss. When, therefore, an indulgence is asked of the Court, which involves a loss of the public time, and occasions inconvenience to the adverse party, it should be granted only on the payment of costs.—Judgment affirmed.

Seawell J. gave no opinion.