Dexter v. Kellas

Second Circuit

Dexter v. Kellas

113 F. 48, 51 C.C.A. 35, 1902 U.S. App. LEXIS 3926

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 14, 1902

DocketNo. 40

StatusPublished

Cited by4 cases

This text of 113 F. 48 (Dexter v. Kellas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dexter v. Kellas, 113 F. 48, 51 C.C.A. 35, 1902 U.S. App. LEXIS 3926 (2d Cir. 1902).

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Opinion

PER CURIAM.

This is a writ of error by the plaintiff in the court below to review a judgment for the defendant taken by default because of the failure of the plaintiff to appear at the time the cause was moved for trial. The assignments of error challenge the action of the court below in refusing the application of the plaintiff to postpone the cause, and denying a motion made by him subsequently to the dismissal of the complaint to open his default.

A writ of error will not reach rulings involving an exercise of discretion unless the discretion has been abused. The refusal to postpone a trial is within the rule. Means v. Bank, 146 U. S. 620, 13 Sup. Ct. 186, 36 L. Ed. 1107; Isaacs v. U. S., 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229; Goldsby v. U. S., 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343. So, also, is the refusal to reinstate a cause. Welch v. Mandeville, 7 Cranch, 152, 3 L. Ed. 299. Upon the facts in the record, so far from there having been an abuse of sound discretion by the court below, its rulings were amply justified.

The judgment is affirmed, with costs.

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PER CURIAM.

This is a writ of error by the plaintiff in the court below to review a judgment for the defendant taken by default because of the failure of the plaintiff to appear at the time the cause was moved for trial. The assignments of error challenge the action of the court below in refusing the application of the plaintiff to postpone the cause, and denying a motion made by him subsequently to the dismissal of the complaint to open his default.

A writ of error will not reach rulings involving an exercise of discretion unless the discretion has been abused. The refusal to postpone a trial is within the rule. Means v. Bank, 146 U. S. 620, 13 Sup. Ct. 186, 36 L. Ed. 1107; Isaacs v. U. S., 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229; Goldsby v. U. S., 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343. So, also, is the refusal to reinstate a cause. Welch v. Mandeville, 7 Cranch, 152, 3 L. Ed. 299. Upon the facts in the record, so far from there having been an abuse of sound discretion by the court below, its rulings were amply justified.

The judgment is affirmed, with costs.

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Bluebook (online)

113 F. 48, 51 C.C.A. 35, 1902 U.S. App. LEXIS 3926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dexter-v-kellas-ca2-1902.

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