Lines v. Benner

52 Ind. 195

• Court: Indiana Supreme Court
• Decided: November 15, 1875
• Status: Published

Opinions

Downey, J.

This cause was set on the docket of the circuit court for the sixth day of the term by the clerk, and the plaintiff had caused his witnesses to be summoned for that day. The defendant had, for some reason not shown, summoned his witnesses for the fifth day of the term. In calling th'e docket for the trial of causes, on the fifth day of the term, the court called this cause, and, the plaintiff not being ready to proceed with the trial, the court, over his •objection, dismissed the action. Proper exception was taken to the ruling, and it is assigned as error.

Counsel for the appellee think the question is not properly presented, because there was no opportunity offered to the court, by motion or otherwise, to review or reconsider its action. ¥e think no such motion, etc., was necessary. No motion for a new trial was necessary. There was no trial. No motion to set aside a default was necessary. There was no default. The question is properly presented. The ruling of the court can not be sustained. 2 G. & H. 216, secs. 359, 360; Norris v. Dodge’s Adm’r, 23 Ind. 190.

The judgment is reversed, with costs, and the cause remanded, with instructions to set aside the order dismissing the action.