Ex parte Sheldon v. Erie C. P. — 12 Wend. 268

Majority

p. 268

Ex parte Sheldon vs. Erie C. P.

Headnote

Where a cause is referred, the defendant is not entitled to judgment as in case of nonsuit for the neglect of the plaintiff to bring the cause to a hearing ; his course is to obtain a rule giving him leave to nolice the cause on his part.

February 5.

The relator was plaintiff‘in an action prosecuted in the Erie common pleas. The cause was referred, and the C. P. granted judgment as in case of .nonsuit against the plaintiff, for his neglect to bring the cause to a hearing before the referees. It was shown that the C. P., by general rule, had adopted the practice of this court in all cases not specially provided for by the rules of ■ that court. The relator insisted that the C. P. had erred in granting judgment as in case of nonsuit; that the defendant ought to have taken a rule authorizing him to notice the cause for a hearing.

By the Court,

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

p. 269

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.