Mellus v. Howard

16 F. Cas. 1332, 2 Curt. 264

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1855
• Status: Published

Opinion

CURTIS, Circuit Justice.

The parties have, by mutual consent, waived the 69th rule; and there is no other general rule of practice limiting the time within which evidence is to be taken. The respondent now asks me to declare that his opponent has had time enough to take his evidence, and to give effect to this declaration, by ordering publication, and thus cutting him off from the production of further evidence. I can mase no such declaration. I cannot undertake, in this summary way, to pass on the rights of parties, and finally conclude them, on my ex post facto view of their conduct of their cause, guided by no rule whatever. This is too broad a discretion to be exercised in any case where it can be avoided. I think the party has a right to know, beforehand, what time is allowed him to take his evidence. And where the only rule fixing a limit of time has been dispensed with, by mutual consent, some other rale, to operate prospectively, must be made, before the party can be put in default.

In the great liberality, not to say laxity, of practice, which exists in this circuit, I have frequently had occasion to consider this matter; and I desire now to say, that where a time rule is waived by mutual consent, either express, or implied from the conduct of the parties, some other rule, prospective in point of time, must be obtained on motion, by special order of the court, before one party can force the other to proceed.