Cusack v. Southern Ry. Co.

April 16, 1921. The opinion of the Court was delivered by Action for claim and delivery of personal property, commenced September 13, 1918. Appeal is from an order of discontinuance dated October 20, 1920.

The suit was instituted by R. Lon Weeks, as plaintiff's attorney. On March 24, 1920, Weeks signed a statement to the effect that his connection with the case as plaintiff's attorney had been severed. The plaintiff then engaged Jacob Moorer in his stead. The latter attorney does not appear to have notified defendants' attorneys of his connection with the case; certainly no order was taken as prescribed by Rule 7, Circuit Court Rules.

The Court of General Sessions for Dorchester County opened at St. George on October 19, 1920. The substituted counsel was on hand prepared to try the case as soon as the criminal business should have been disposed of, though no information of that fact appears to have been communicated either to the Court or to the opposing counsel.

The criminal business was not in fact disposed of until Wednesday, the 21st; but it appears that on the morning of the 20th, before the substituted counsel appeared in the courtroom, the presiding Judge called the cases on Calendar 1 to ascertain what jury cases would be ready for trial. When this case was called, R. Lon Weeks, the original plaintiff's counsel, announced that he had abandoned the case. Thereupon the defendant's counsel moved for and obtained an order from the presiding Judge discontinuing the case and dismissing the complaint with costs.

On the same day the substituted counsel, Jacob Moorer, appeared in the courtroom, and, learning of the order, requested the presiding Judge to hear him with regard to reinstating the case upon the calendar. The presiding Judge ruled that the matter would have to be brought to his attention in the proper manner upon due notice served, and overruled the motion.

The Circuit Judge was justified in making the order of discontinuance under the circumstances, as the only attorney of record announced in open Court that he had abandoned the case, it not appearing that the defendant's counsel had been informed of the substitution of attorneys, and Rule 7 in that regard not having been complied with. We think, however, that after the misunderstanding had been promptly called to the Circuit Judge's attention he should have entertained and granted the plaintiff's motion to rescind the order, and that he placed his refusal upon the erroneous conception that he could only do so after due notice. The Circuit Judge was in absolute control of all orders signed by him in term time.

The judgment of this Court is that the order appealed from be reversed, and that the case be remanded for trial.