Calloway v. McElmurray

Calloway, trustee, brought bail-trover against McElmurray. The case was called in its order, counsel for plaintiff being absent. The plaintiff was called and did not respond. The court, on motion of defendant’s counsel, dismissed the action for want of prosecution. Plaintiff’s counsel, having learned that the action was dismissed, requested of defendant and his counsel that it be reinstated, which was refused. These requests and refusals were stated to the court, and admitted by defendant’s counsel, the latter saying that if his witnesses were present he would be-ready for trial, but that some of them were absent. After the court had heard another cause, defendant’s counsel came in and moved the granting of another order, in the nature of an amendment, directing that the property be restored to defendant from whom the sheriff' had taken it, defendant having failed to give bond and plaintiff having given bond under the statute and taken possession of the property. This was objected to by plaintiff’s counsel, who an [167] ■nounced that plaintiff’ was ready for trial if the court had not disposed of the case by dismissal. No motion was made to reinstate the case. The court ordered defendant’s counsel to draw an order, amending the order of dismissal by further ordering that the property be returned to defendant by plaintiff' within ten days. The plaintiff' excepted. M. G-. Bayne, for plaintiff’. Hardeman & Nottingham, by brief, for defendant.