Greer v. McGehee

Hitchcock, C. J. This was an action of assump-sit, brought by the defendant in error in the County Court of Tuskaloosa county, returnable to the June term, 1829, of that Court. The cause was continued from term to term until December term, 1831, whep an agreement was made to the following effect, to-wit; “ that it (the cause) should be tried on its merits at the June term, 1832, of said Court, waiving the plea of the statute of limitations, on the condition that' the plaintiff agree to a continuance thereof, and positively to try it at said term. The trial to be before George Starr and H. Perkins, and a third individual to be chosen by those two, in the place of a jury: evidence out of the State to be taken by interrogatories.” The cause was not tried at that term, and no entry [400] of record was made, either of a general continuance of the cause, or of the agreement above alluded to. At the December terns, 1832, the cause was tried, by order of the Court, under the agreement.; the arbitrators above named, together with on-e Johnson, chosen by them, acting as a jury; the plaintiff in error objecting to the trial; and a verdict and judgment was rendered against the defendant. Two errors are assigned and relied on, to reverse the judgment. First: that the cause was discontinued at June term, 1832 — there being no order of continuance. Second: that there is no verdict on which a legal judgment can be sustained. In relation to the first assignment, it is sufficient to remark, that by law:, all causes not tried, or otherwise disposed of, at each term, shall stand continued, of course, to the next terra. It is not necessary, therefore, to have any order of continuance entered, in each case ; it is only necessary,, that no disposition appears to have been made of the case. 2. But we think there is error in the second assignment. The agreement to try the cause by three jurors, was confined to the June term; 1832 ; beyond which time the defendant was not bound to try it in that manner. After that term, the cause stood as every other on t,he docket — to be tried in the ordinary manner. To have bound the defendant, it should appear by the record, that a continuance of the terms of the agreement had been made at the June term, 1832. Let the cause be reversed and remanded. Collier, J. not'sitting.