Stewart v. Ross

58 Ala. 264

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

MANNING, J.

This cause was begun in 1856, and was continued from term to term-sometimes by consent of parties by their attorneys, sometimes generally, and sometimes on condition if no,t tried at the next term it should be dis-i~issed, An order of the latter kind was made at the Spring term of the Circuit Court, 1869, which was not enforced.

A similar order was again made at the fall term, 1873, (on the 23d of ,January, 1874). The cause was, as the entry recites, "continued until the next term of this court, with the express understanding that it is to be tried then, or dis-. missed from the docket." This imposed on plaintiffs the duty of proceeding to trial or judgment at the next succeeding term, under the penalty assented to by them, that if they did not, their suit should be dismissed. Although, at the Spring term, 1874, this penalty was not enforced, and the cause was continued generally, the agreement upon record, of Fall term, 1873, was not discharged, but authorized the dismissal of the cause at the subsequent Fall term of the court in the year 1874. About the close of that term (January 12, 1875) the order of non-suit complained of, was entered upon motion of defendant's attorneys.

The order should have followed the terms of the agreement, and dismissed the cause. But a non-suit when ordered, as in this case, is in effect a dismissal; and we do not perceive that any injury is done to appellants, by the adoption of tbe one form rather than the other. If there was error, it was error without injury.

Let the judgment of the Circuit Court be affirmed.