
    William Kain et al. vs. Philip May et al.
    It is erro* at the return term of the writ, in an action in the circuit court, to non-suit the plaintiff for failing to reply to the special pleas of the defendant.
    If, however, at the term succeeding, the plaintiff fail to perfect the pleadings, instanter, the court may then enter judgment of nonsuit against him.
    In error, to the circuit court of Amite county, before the Hon. Van Tromp Crawford.
    William Kain and Robert Pitts, partners, under the firm of William Kain & Co. brought their action of assumpsit on two promissory notes against the defendants, Philip May and H. G. Street, by filing their declaration in the clerk’s office, and causing a writ to issue against the defendants thereon, upon the 12th day of July, 1842. The writ was executed upon the defendant, Street, on the 25th July, 1842; and returned as to May, “Not found in my county,” on the 16th day of August, 1842.
    The circuit court, to which this writ was returnable, commenced its session on the second Monday in November, 1842, which was the 14th day of the month, as appears by the record. Street filed four pleas. 1st. The general issue. 2d. .A denial of the execution of the notes. 3d. That the mercantile firm of P. May & Co. was composed of David May and Philip May. 4th. That he did not promise within three years. The two first pleas were sworn to on the 16th of November, 1842, the third day of the term. On the 19th day of the month, the sixth of the term, the following order was made: “ And now, at this time of the court, to wit, at the term last aforesaid, and on the 19th day of November, 1842, came the defendant, Street, by his said attorneys, and moved the court for a rule for security for costs and his affidavit filed. Motion sustained, and rule made absolute, if security be not given within sixty days.” There follows in the record the following order: “ And again, on the 23d day of November 1842, at the term of the court last aforesaid, came the defendant, by his said attorney; non pros, for want of replication to the defendant’s special pleas; therefore, it is considered by the court here that the defendant and the officers of our said court, do recover against the said plaintiffs the sum of thirteen dollars and fifty cents, which were adjudged to them by our said court, with their assent, for their fees which accrued in the prosecution of this suit, and that they have execution therefor.”
    To revise this judgment this writ of error is prosecuted.
    
      Sanders and Price, for plaintiffs in error.
    We suppose the judgment clearly erroneous, for the following reasons:
    First. That by obtaining the rule against the plaintiffs for costs, upon an affidavit, concluding with these words, that the plaintiffs “be held to security for costs of suit, before this defendant is compelled further to plead,” it operated suspension of the proceedings until the bond should he executed; and the principle is too familiar to require reference, that a party shall not be allowed to take advantage of his own wrong; for at the time the rule was asked a bond had already been filed; and besides, there was no notice of the application, either to the plaintiffs, or their attorney. They were not called, and it is not pretended that they were either present, or had notice of the application. Having, however, heard of the rule, they considered the cause as suspended until the bond should be executed, which was afterwards done within the time prescribed by the rule: therefore the entry of the nol pros, was taking advantage of their own wrong.
    Secondly. If it were otherwise, the plaintiff had the whole of the term to make up the issue. But the order and judgment itself is a nullity upon its face, or at all events must be regarded as voidable. For it, like the one for security for costs, was ex parte, without the presence of the plaintiff, or without his being called. One of our boasted maxims is, that “ our courts are open, that no one shall be deprived, &c. without being heard, by due course of law.” And unless petty artifice is to be allowed to take place of the administration of substantial justice, no order or judgment of any court should be allowed to stand, unless the record shows that the party had an opportunity of being heard, or was in default.
    This proceeding, it is presumed, must owe its origin to the act of 1840, which requires “that all suits or actions brought to any of the courts of law of this state, shall stand for pleas and issues only at the return term of the writ.” “And the issues on which the case is finally to be put to a jury (as far as can be ascertained) shall, at said return term, be made up and stand for trial at the succeeding term.” See sections 1 and 2 of an act to regulate the practice of the circuit courts, session acts, 1830, p. 132, 133.
    Now, what was the intention of the legislature, judging from the words employed in the act. It meant that the issues should be made up at the return term of the writ, which should be executed. In this case the writ was only partially executed; there was no dismissal as to the other defendant; no service upon him, and no appearance by him. The action was joint. The plaintiffs alone could sever the action. How preposterous to say that the issues shall be made up, when the parties are not before the court. But in point of fact a bond was on file at the time of the motion, and no objection was taken to it.
    For these causes the plaintiff in error insists that the judgment of the circuit court be reversed, and that the cause be remanded, and plaintiff have leave to reply to the pleas of the defendant, Street, and for further proceedings.
    
      Quitman and M’Murran, for defendants in error.
    The only question in this case is, whether the court below acted legally in giving a judgment of non pros, against the plaintiffs, for not filing replications to the special pleas of one of the defendants, H. G. Street, the only one served with process.
    Unquestionably the court had the power, and it was its duty to have a non pros, entered for want of the replications. No particular time is allowed to file the replications, nor is there any rule upon thq subject. Nor is there any law or rule of court requiring any notice thereof to the plaintiff, or his counsel. It is a matter that arises at any time when the court will hear it, even where the cause is called for a trial. The plaintiffs were bound to make up their issues with the party in court who had filed his pleas; and the other defendant, not being found, did not change the rule. It rested in the discretion of the court below. And if the parties plaintiffs considered' themselves aggrieved by the court in granting the non pros, it was their course, at the same term of the court, to have made a motion to set the non pros, aside, and if refused to be set aside, then to have embodied in a bill of exceptions the facts, to show that the court below erred in its judgment of non pros. and this court would have had something in the record to act on. Either such a bill of exceptions, or a bill of exceptions taken at the time to the decision of the court, in granting the non pros, showing that the court erred in its decision,- was indispensable, to present any case to this court for its decision, unless this court shall decide that the circuit court has no right or power to grant a non pros, in any case, for want of replications to special pleas.
    As to the ground assumed by the opposite counsel, that no proceeding could take place pending the rule for security for costs, we cannot recognize it, nor can any authority be produced to sustain such a position. The granting of a sixty day rule for security for costs does not suspend the pleadings, or any proceedings in the cause preliminary to a trial, and if the defendant has obtained the rule, and he chooses to proceed to trial pending it, the plaintiff cannot object. It is a matter entirely with the defendant, and he may waive it at any time if he chooses; but it in the mean time furnishes no legal ground for either party to suspend the pleadings, the disposal of demurrers, any interlocutory orders, subpoenaing of witnesses, or the like.
    We trust, then, that this court will have no hesitation in affirming the judgment of the court below.
   Mr. Justice Thachee

delivered the opinion of the court.

Writ of error to Amite county circuit court.

At the return term of the writ in this case, a judgment of nonsuit was allowed against the plaintiffs below for having failed to reply to sundry special pleas.

The rule governing pleadings is established by statute in this state, by the act regulating the practice of the circuit courts,” 1840, chap. 74. At the return term of the action, all pleadings or defences, not requiring the action of a jury to decide them, must be disposed of by the court at that term. At the succeeding term, all issues to the country must be tried, disposed of, or continued ; but if, at that term, the pleadings are discovered to be defective, or the issues tendered and accepted, immaterial, it is the duty of the judge holding the court, to require and cause the pleadings to be amended and perfected instanter, to the end that the merits of the controversy may be fairly submitted to a jury. A judgment of nonsuit for a failure to file replications to special pleas based upon matter involving the merits of the controversy between the parties upon matters of fact for a jury, cannot legally be allowed at the return term of the writ in any case, but it is the duty of the court to require the proceedings, at the trial term, to be perfected instanter, and in default thereof, then to give such judgment as the case may require.

The judgment of the court below is reversed, the cause remanded for further proceedings, with directions to the circuit court to require the pleadings to be perfected instanter, and in default to give judgment of nonsuit.  