
    
      McDermaid and wife v. J. B. Earnest.
    
    Ordering a case on for trial, and granting a motion for nonsuit, are entirely -within the discretion of the Circuit Judge.
    After a nonsuit has been granted the Judge cannot, without the consent of the party in whose favor it has been granted, or his attorneys, set it aside and restore the case to the docket; for the nonsuit is as much a legal ending of the cause as a verdict.
    
      Before Fuost, J. at Charleston, October, 1849.
    This case had been called several times, and as often passed, because the attorney for the plaintiff did not appear to answer to it, and no other attorney was instructed to do so in his stead. The defendant’s attorneys were present, and declared they were ready, and desirous that it should be disposed of; and demanded a trial. This demand was put off until the last and peremptory call of the docket. The attorney for the plaintiff still not appearing, and no sufficient excuse for his absence being made known to the Court, the plaintiff was non-suited. It appeared that the plaintiff’s attorney had gone to the North on business. It was not understood to be professional business. But even if the plaintiff’s attorney had accepted a retainer in a cause in the Court of another State, that was not sufficierit to suspend, in our Courts, the trial of the many cases in which he appeared.
    On the day assigned for hearing motions, amotion was made to set aside the nonsuit. The ground of appeal is altogether vague and indefinite, and does not disclose the circumstances on which the appellant relies to shew that the non-suit should, in common justice, have been set aside. Cases on the country issue docket were continued for various causes shewn. But the plaintiff shewed no cause. The only ground on which the plaintiff insisted, in support of his motion, was the prevailing fever, which detened many persons from coming into the city. In some cases this apprehension, which kept away witnesses or parties, was allowed as sufficient ground for continuance. It was not shewn by any affidavit at the hearing of the motion, that the plaintiff or his witnesses were kept away from Court by this apprehension. It was only urged, in argument, that the cause shewn in other cases, should be assumed in this case. There was no evidence that the plaintiff had been notified or his witnesses supoenaed to attend the Court. Such attendance would have been useless, when the plaintiff’s attorney was absent from the State.
    The motion to set aside the nonsuit was refused.
    The motion was renewed in the Court of Appeals, upon the ground:
    
      That by the course of the Court, and the facts stated on the rule, the Court was bound, in common justice, to put this t case on the same footing as every other case on the issue docket of country cases.,
    
      Benj. F. Hunt & Son, for the motion.
    
      Seigling, contra.
   Curia, per O’Neall, J.

In this case, we think the whole matter complained of, as to ordering the case on for trial, and granting the motion for non-suit, was entirely within the discretion of the Judge below.

After the non-suit was granted, the Judge could not, without the consent of the defendaut, or his attorneys, set it aside, and restore the case to the docket; for the nonsuit is as'much a legal ending of the cause as a verdict; and in the case of The Ex’trs. of Thomas v. J & J. D. Brown, it was held that the Judge who tried the cause could not set aside the verdict and grant a new trial. The same consequence must attend a nonsuit.

That no Court has the power to set aside a non-suit, properly ordered, without the consent of the party in whose favor it is rendered, is the plain inference from McColum v. Massey and McNeill.

The motion is dismissed.

Richardson, Evans and Frost, JJ. concurred.

Wardlaw, J.

I think it material to observe that the regular term of the Court had expired, before the motion to set aside the non-suit was made.

Motion refused.  