
    The People on the relation of Henry Wineman v. The Judge of the Wayne Circuit.
    
      ¿Practice: Non-suit: Notice of trial: Waiver: Second non-suit. Where on motion to set aside a non-suit an order has been granted that the non-suit be set aside on payment of costs, and the defendants, before the costs had been paid, noticed the cause for trial, this would operate as a waiver of the non-suit and authorize the plaintiff to proceed, to trial on such notice; but if plaintiff was in doubt concerning the waiver and disputecl the right to have the ease placed on the trial docket, knowing it was placed there he should have moved to strike it off, and failing in this, the court was justified in considering the case as standing regularly for trial and in ordering a second non-suit.
    
    
      Heard January 17.
    
    
      Decided January 19.
    
    Application for mandamus.
    
    This application seeks to have respondent set aside a judgment of non-suit entered in a cause pending in the Wayne circuit wherein relator was plaintiff and Joseph Yan Baalen and another were defendants. It appeared that a previous non-suit had been entered in the cause, and upon a motion to set the same aside it was ordered that it be set aside upon the payment of five dollars attorney fee as costs of the motion. The case was put upon •' the docket at the following term upon the notice of defendants, but *the costs were never demanded or paid. The plaintiff’s counsel, when the cause was called at the opening of the term, announced that the same was improperly on the term docket, for the reason that the order setting aside the previous non-suit had not been complied with, and that the non-suit was still in force. The court, however, set the case down for trial on a day specified. When the cause was called for trial, plaintiff failed to appear, and the judgment of non-suit now complained of was entered, defendants’s counsel expressly waiving their right to demand the costs provided for in the previous order.
    
      Gr. JET. Prentis and F. A. Baker, for relator.
    
      John Atkinson, for respondent.
    
      
       regularity of notice is waived by consenting to go to trial: Cook v. Perry, 43 Mich. 623. Notice of hearing waives irregularity of settling exceptions: Mason v. Phelps, 48 Id., 126. Non-suit: Hillv.Weber, 50 Id., 142.
    
   Cooley, Ch. J.-.

We do not think a clear case for a writ of mandamus is made out. When the defendants noticed the cause for trial this was in law a waiver of the previous non-suit, and plaintiff was entitled to proceed to a trial on such notice. But if the plaintiff was in doubt regarding the waiver, he knew that the case had been placed on the trial docket, and if he intended to dispute its right to be there, he should have moved to strike it off. Failing to do this, the circuit judge was justified in considering the case as standing regularly for trial:

Mandamus denied.  