The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-12-04
SUPREME COURT DECISIONS.
Reported Weekly by j. W. Jenkins,
AttOrn g y-nt-LMw. aRG
ocTonER TERN. 1850.
MARY K. Yosr.


| A. ANDERSON.
Error to the Chancery Court LIST District
Kinds county, Hon. r. G.. Peyton, Cham
cellor.
Appellant filed her bill TO have declared
void deed purporting to have been made
by her and her husband, May 0. 1876. 1t was
executed by appellant with her mark, and
its execution was attested by j. II. Boyd,
who also, being IL Justice of the Peace,
took the acknowledgment of both husband
and wife.
The bill charges that appellant never
executed or acknowledged the deed, and
on that ground relief is prayed. The sum
mons which was served on the defendant
cited him to appear at Chancery Court
to be holden at the court room thereof
on the I'd Monday in July,
1878" which was II rule day of the court,
the tenn not commencing till the second
Monday in September following. On the
second Monday in August, the complainant
took II pro can feSs0, no answer having been
filed. A day or two thereafter the defen-
ed) filed Il motion to set aside the pro con-
Jesse, and accompanied il with an answer
denying the allegations of the bill, and an
affidavit of defendant stating that when
summons was served on him he had just
returned from an absence of six months,
and was much engaged in business which
had accumulated during his absence, and
that he was much excited in common with
the rest of the community by rumOrs of
yellow fever in New Orleans, and by fears
that it would reach Jackson (where he
liVed). That owing to those causes, and
the fact that the summons required him to
appear at Il term of the Cnancery COurtand
not at Il rule day, he did not observe that
the day of appearance was a rule day and
not the day for the commencement of the
term of the court, and in this way he neg
lected to put in his answer before the pro
can eS&O was entered.
The Chancellor sustained the motion
and allowed defendant to file his answer,
and on final hearing rendered decree in his
favor, from which Il writ of error was taken.
Shelton ~ shelton for plif, in error.
r. j. 4 F. A. r. Wharton for def. in
error.
GEORGE, j.
WM-
/. The action of the Chancellor in set
ting aside the pro cOAfeSSO and allowing the
defendant to lille his answer was correct.
The filing or the answer 0ccasioned no
delay in the trial of the cause, and the APP
sn nft
the pro c0nfeSSo decree was entered that it
is impossible to conceive that the complain
ant had omitted to take any steps to pro-
cure testimony or secure her rights upon
the faith that the bill would not be defend
cd The statute, Code of 1871, 1921,
declares that "pro co4tess0 taken shall
not be set aside without good cause shown
by affidavit" 1t is argued that
the cause shown was not good and Sutfi-
cient; that mere inattcntion or forgetful-
ness cannot be Il valid excuse for Il failure
to discharge u legal duty. This may be
true when such inattentiOn or fOrgetful- |
ness has OccasiOned IL failure which has
been injurious to the adverse party, or the |
action of that party based on such failure |
and caused by it cannot be reversed With
out injury to him. Butwhen the negcctis
IN the mere conduct of suit, and its consc-
luences do not operate injuriOusly, its con-
donation by the judge can do no harm |
except to deprive the adverse party of an
advantage which he has secured in virtue
Of such neglect. and in that case the party
guilty of the neglect should not, on that
recount alone, be deprived of the means
md opportunity of maintaining or defend
ng his rights.
,. The decree on the merits of the case
vas correct 1t it true the complainant
md her daughter testified that the COM
claimant refused, in the presence of the
Justice of the Peace, to execute or
acknowledge the deed. In opposition to
his the facts fully establish that the JUS
ice of the Peace who attcsted the deed
I'd took the acknowledgment, was man
# high character and well acquainted with
lis official business and that Yost, the
husband, paid rent for the property con-
eyed in the deed during his iifetimc-that
knew this-and after her hus-
and's death she paid rent for the same
remises for a short time and then sllrren-
erred them to appellee. 1t is also to be
oted rs Il significant circumstance that
he bill was not filed till after the death of
he Justice of the Peace, and of the hlls-
and.
Decree affirmed.