Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-01-02
AN IN PORTANT RULING
Court of Appeals Gives Opinion Vacating
Certain Orders and Proceedings.
Defendant Permitted to Renew Motion
to Set Aside Writ-Parxons
Against Hill.

In the case of Joseph H. Parsons. appel
liant, against Alice s. Hill, the Court of APP
peals. in an opinion written by Mr. Justice
Morris. this afternoon remanded the cause
This was done with directions to vacate
or rescind an order vacating an alias writ
of summons issued in the cause and to
vacate all the orders and proceedings had
in the cause subsequent thereto; also with
directions further to permit the defendant
to renew her motion to vacate the alias
writ, II she so desires, and motion to sup
port by proper proof and thereupon to take
such further and other proceedings in the
cause as may be in accordance with law
and not inconsistent with the opinion of the
Court of Appeals.
This cause comes here by special APP
peal, the opinion states, and the question
involved in it Is one of considerable i'm
portance in the practice of the law in this
District under existing conditions
On The same day which the dec la ra ton
in the case was filed a summons was issued
requiring the defendant to appear in court
to answer. The summons was returned with
the Endorsement that the defendant could
not be found. Nothing further was done
for nearly two years. when another sum-
mons was issued and served.
The defendant moved to vacate the sec
ond or alias summons on the ground that
the same was improvdently issued, since
the original summons issued in the cause
was not legally and duly continued, and
that. therefore, there had been discon-
tinuance of the said cause This motion
was allowed by the court, and the second
or alias summons was accordingly vacated.
Plaintiffs Motion.
The plaintiff then In turn moved for the
allowances of continuances from the date
of the original summons; for Judgment for
want of duly verified plea, and for judg-
ment by default The motions were de-
MED. A special appeal was allowed
we are advised that in the present case
the alias writ of summons which was actu-
ally served upon the defendant was vacat-
Appeals, upon the ground that there had
been no actual continuances entered in the
case-that is, that there had been no actual
and continuous issue of successive writS,
and not because there was proof of any
actual discontinuance by the plaintiff when
it was open to him to have a writ issued
which would be efectual to bring the de-
PENDANT before the court.
mo proof of such actual discontinuance
seems to have been offered or required and
it seems to us that, in the absence of such
proof, the victim of the writ of summons
was not warranted by what was understood
to be the existing practice of the court as
determined by its own rules of procedure
Common Law Suits.
Suits at common law, which have been
duly commenced by the filing of declara
ton and the issue of process Hereunder,
cannot thereafter be permitted to remain
Indefinitely within the control of the plain
tiff alone The suit should be effectively
prosecuted in good faith, or dismissed. Due
diligence in such prosecution is an essential
requirement on the part of the plaintiff.
IF that due diligence is wanting, effect
should be given to the rule of law that
works a discontfnuance of the suit But
under the code of procedure of the SUI
preme Court of the District. that question
of due diligence is a question of fact to
be shown to the court by proper proof.
This was not done in the present case and
We think that 1t was error to vacate the
writ without such proof