¶1The court has no power to make the order asked for. The rule which is binding upon this court provides that no more time than three months shall be allowed for taking testimony without a special order. But suppose the testimony had been taken, the case must take the usual course and wait for its turn on the regular argument list. All that the rule requires is that the evidence shall be in within a fixed time, if not it is at the complainant’s peril, but he is then only deprived of the testimony which diligence would have supplied him with and loses none of his other rights. Motion denied.
21 F. Cas. 491
Sargeant v. First Nat. Bank
U.S. District Court
Decided January 25, 1879
U.S. District Court · decided 1879-01-25
Motion to dismiss bill for want of prosecution. In this case after the bill had been filed, an answer was put in, and on October 3.1S7S, a replication. No testimony had been taken prior to the filing of the motion to dismiss. Equity rule 69, Sup. Ct. Rules (Ed. 1866), allows “three months and no more” for taking of testimony after the cause is at issue, unless the time is enlarged on cause shown. Here more than that time has elapsed.
Decided 1879-01-25