State Bank v. Whiting, 7 Ark. 119 (1851)

State Bank vs. Whiting et al.

Hempstkad lor the plaintiff.

Traiwall & TrapNall contra.

Mr. Chief Justice JohnsoN

delivered the opinion of the Court.

The defendants, at the April term 1849, filed a motion to dis­continue the cause upon the ground that it had not been placed upon the docket, nor entered upon the minutes of the court, since the October term, 1847. The court sustained the motion to dis­continue, not for the reason assigned in the motion, but for the fact that a declaration, which appeared to have been filed in the cause, on the 5th of February, 1848, had been withdrawn by the plaintiff on the same day that the order of discontinuance was made, and which declaration was deemed by the court the com­mencement of a new action. The original declaration and the one upon which the writ issued was filed on the 7th of August, 1846. It is unnecessary to say any thing as to the effect of a failure to place the cause upon the docket, and of an express order to continue it from term to term, as the state of case, as suggested by the motion did not exist in point of fact! The cause was regularly continued over by an express order from term to term from the April term, 1847, down to the final judgment. The declaration which appears to have been filed on the 5th February, 1848, was a mere loose paper that had straggled into the case and that without any authority, and so far as the record shows, without any connection whatever with the proceedings. The original declaration stood upon the files in full force without any motion or order to withdraw it, nor is there any showing upon the record how the one which was withdrawn ever found its way into the case.

It is manifest, therefore, that there was no good ground to dis­continue the cause, and as a matter of necessity the judgment must be erroneous and ought to be reversed. The judgment of the Circuit Court of Arkansas county, herein rendered, is there­fore reversed, annulled and set aside with costs and the cause remanded to be proceeded in according to law and not inconsis­tent with this opinion.