The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 41
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HOWIE MINING CO. V. M'GARY
same attorney of theirs to assist, and he did assist, in the prosecution
of this criminal proceeding against Bracey; that three of the attor-
neys representing the plaintiff in this civil action had defended Bra-
cey in the criminal prosecution, and therefore defendants verily be-
lieve that said three attorneys knew, at the time this judgment was
taken by default, that they had employed their attorney to make de-
fense herein, but concealed such knowledge from the court.
Much as this court may regret any injustice done, if any has been
done, to defendants, it cannot reconcile itself to the conclusion that
these facts warrant it in setting aside this judgment. It can hardly
be held that failure to receive an answer to a letter, liable to be lost
in the mails, as doubtless was the case here, will justify their sleep-
ing on their right to appear on the return day of their summons, give
rule to plaintiff to file its declaration, and in case it failed to do so
within the time expressly required by statute, have the case promptly
dismissed in the clerk's office. Too much hazard is involved in basing
court procedure upon the delivery of ordinary letter mail. Fully con-
ceding the letter to the clerk was mailed, the mental query constantly
recurs, why, when no answer came, was no other inquiry made, no
other letter even written, to ascertain whether they could rest in se-
curity and believe the action dismissed for failure to file the declara-
tion? Neither attorney nor defendants seem to have made a sugges-
tion, one to the other, that such very natural course could be taken,
in order that they might be sure in their suppositions that the action
had been abandoned. And yet for a year, substantially, they could
have made such inquiry and been in time to make defense. The law
can hardly justify any one, in small and unimportant litigation, to be
so negligent. Here a very large sum was sued for, and yet a year was
allowed to go by without any effort made to defend, solely because a
letter to the clerk remained unanswered.
But, if we were to assume that the letter had been received by the
clerk, that he laid it aside and forgot, when the declaration was filed,
to send the copy, or the extreme case that he deliberately declined to
answer it and send the copy, it would seem to be no excuse for the de-
fendants' laches in the premises. The law lays down a straight
road for one sued to travel to his defense. He must obey its mandate,
appear in person or by attorney, demur or plead to the declaration, if
filed, and, if not, by rule demand either that it be filed or the action
be dismissed. The law goes farther in his behalf, and requires the ac-
tion to be dismissed by the clerk after the lapse of three months, if
no declaration is filed. Surely the least degree of prudence would
require a defendant to see that this was done. The letter in question,
only by implication, could convey to the clerk, if he had received it,
any idea that it was the purpose of the attorney sending it to enter an
appearance in any way to the action for the defendants. It does not
disclose that he was writing 9n their behalf or as their attorney. The
clerk, living so far away, was not at all likely to have knowledge that
the relation of attorney and client had ever existed between the par-
ties, or that they even knew each other. It is certainly no uncommon
thing for clerks of courts to receive requests for copies of papers of
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/55/: accessed September 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.