Ex parte Sheldon v. Erie C. P.

12 Wend. 268

Opinion

By the Court,

Nelson, J.

The question here is whether judgment as in case of nonsuit can be granted in a cause which has been referred. The practice of this court is perfectly settled, that ordinarily it cannot be done. Where a term has intervened after the reference, and the plaintiff has neglected to bring the cause to a hearing, the defendant' may apply to the court for a rule that, unless the plaintiff notice the cause for a bearing within twenty days after notice of the rule, or discontinue upon the usual terms, the defendant have leave to notice the same for hearing, and then such proceedings are had as are particularly pointed out in the case of Bissell v. Lee, 16 Johns. R. 45, in which the rule of practice of this court was established, which has'never been abrogated. In the case of Champlin v. Petrie, 4 Wendell, 209, judgment as in case of nonsuit was granted in a reference cause, but it was under peculiar circumstances: the plaintiff being under a rule to file security for costs, the court would not compel the defendant to incur further costs by noticing the cause for a hearing. If the C. P. of Erie have no rules varying their practice from that of this court, they erred in granting the judgment as ill case of nonsuit. An alternative mandamus is ordered.