Lindsay v. Circuit Judges

Per Curiam. In this case, when the cause had been reinstated, and stood for trial, it was subject to the same rules as any other; and, the failure to have the party in court when called appearing to have arisen entirely out of a misapprehension as to where he was to be, it would have been a hardship not to open the nonsuit when the court had seen fit to enter it. The judge having allowed the motion to be made, and there being no real question about it, the subsequent refusal of it on technical grounds, as to the formality of entering it, and not on the merits, coupled with permission to renew it, left it where it should have been decided, on the original merits, as it no doubt would have been had the same judge heard it, as the usual course contemplates. Under these circumstances, the reasons which guided the other judge, whieh related rather to public convenience than to the mutual rights of the parties, were not, in our opinion, applicable, and were not sufficient to sustain the denial, no other grounds being made out. The motion should have stood on its first grounds, and the validity of these does not seem to have been denied by the return. The mandamus must be granted.