Hair v. Moody , 9 Ala. 399 ( 1846 )

GOLDTHWAITE, J.

1. There is no question with us as to the irregularity alike of the judgment of non pros, and of ’the order setting it aside. It seems the cause had been continued, at a period previous to the time when the nonsuit was asked, and consequently it was irregular then to grant the motion, however sufficient the reason for doing so, as the plaintiff was discharged from the court for that term. [Innerity v. Frowner, 2 Ala. R. 150.] The proper course for the plaintiff, under this condition of the suit, was to move some supervisory court for the necessary process to set aside or vacate the irregular judgment of nonpros. The same course was proper to the defendant, when the plaintiff procured the nonpros, to be set aside. Instead of this however, he subsequently appears in the cause, is active in its. defence, and owing chiefly to this, as we must presume, the suit is prosecuted for many terms. In our judgment the irregularity was cured by the subsequent appearance of the defendant to the action.

2. As to the other question, we need not consume time in its examination, as it is the settled practice in this court, that the allowance of pleadings out of time, is a matter of discretion with the court, the exercise of which is not a subject of revision. Judgment affirmed.