Evans v. Mott , 7 Port. 92 ( 1838 )

COLLIER, C. J.

— Had the County court have overruled the motion of the plaintiff in error to quash the writ, the case would have stood for trn 1, at the term at which the judgment by nil dicil was rendered. 'And shall an error committed by the court, after it has been corrected, place the party who was prejudiced by it, in a situation less favorable to the attainment of speedy justice, than if there had been no interruption to the regular progress of the cause? We think not. It is true, when the writ of error was taken to the Circuit court, the case had been pending on the appearance docket only; yet inasmuch as it would have been triable when sent back, we think the plaintiff had no right to'object to a trial. The defendants were in no default, and' the error of the court, from which the plaintiff claims an advantage, being occasioned by his motion, we think he should not be allowed to profit by it.

The judgment is affirmed.