State ex rel. Sadler's Ex'x. v. Cox

Archer, J. delivered the opinion of the Court. There is & conclusive objection to the proceedings of the county court. They have struck out the judgment, without directing the suit to be brought up by regular continuances. This is manifest from the record, for the judgment is ordered to be struck out, and the'defendant is discharged without day. If it had been proper to have stricken out the judgment, it was indispensably necessary to have entered the regular continuances, otherwise the salutary provisions of the act of 1787, ch. 9, s. 6, would be lost to the plaintiff. For to recover his debt, if recoverable at all, he would be compelled by this proceeding, not only to pay the costs of the action, but to begin de novo: whereas, had the continuances been regularly entered, it is not for this court to say, but that by an amendment of his pleadings, notwithstanding the original judgment had been struck out, he might have recovered. He might have'replied to the plea of general performance the existence of a debt due from Fielder Dor sett, and that the administratrix was in insolvent circumstances, which would have rendered the security liable, unless he could prove -that.the estate had been duly administered. Horsey, J. dissented. JUDGMENT REVERSÉ®.