Mooney v. Hooper

The facts are fully stated in the opinion of the court, delivered by Porter J. This case was put at issue at the November term, in the year 1830: On the eighth of April, 1831, we find the following entry on record. “ On motion of James M. Bradford for the plaintiff, and filing affidavit, ordered that commissions issue to take the testimony of the witnesses therein contained, and the cause continued.” This order appears to be made-on the day, on which the cause had been previously set for trial, viz : the eighth. On the next day, the order was set aside, and this entry made: “ On motion of L. Saunders for the defendant, ordered, that the continuance be set aside, and the cause set for trial the fourteenth instant.” The cause was not tried on the fourteenth, but on the nineteenth, the plaintiff and his counsel being repeatedly called by the sheriff, to come into court and prosecute the suit, and failing to do so, judgment was given for defendant, as in case of non-suit. After-the cause was continued on the day it was set for , • i . .. .. ........ trial, we are of opinion, no further proceedings could be had in it, during that term, unless notice was given to the plaintiff or his attorney. It does not appear, the continuance was set aside, after hearing both parties, but on the motion of one of them, at a time his adversary was not in court, nor required to be there. The judgment of non-suit growing out of this . . , , irregulanty, must be set aside. It is, therefore ordered, adjudged and decreed, that the judgment rendered in this case, be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the case be remanded, to be proceeded in according to law, the appellee paying the costs of the appeal.