
    Rogers v. Alexander.
    Where two motions are pending at the same time; one by defendant to affirm for the want of notice, and the other by plaintiff, for leave to -withdraw the writ of error, the supreme court will, at discretion, give preference to that motion which the nature and justice of the ease may require.
    
      Error to Van Duren District Oourt.
    
   Opinion by

G-reeNB, J.

This case comes before us on two motions; one to affirm the judgment for want of notice of suing out the writ of error; and the other by plaintiff in error, for leave to withdraw the writ and papers without prejudice.

The question arises, to which of these motions shall we give precedence. This is a matter not regulated by rule or practice, and is consequently confined to the discretion of the court, to be determined by the circumstances of each particular case.

A. Hall, for plaintiff in error.

H. M. Shelby, for defendant.

That clause of the statute requiring fifteen days notice, and in default thereof, an affirmance of the judgment unless good cause be shown for the failure, is an imperative rule upon the court, which cannot always conform to the rights of parties. The stringent, inflexible character of the rule must necessarily work a hardship in some instances, unless counteracted in justifiable cases by an interposing motion; such as an application to withdraw the writ without prejudice. This application however, can only receive priority over a motion to affirm for want of notice, in peculiar cases in which the rights of a party might be injuriously affected by its refusal. And in this light, we recognize the present case. The appealing party appears to have acted in good faith; without motive to retard the operations of justice; and at least with grounds of defense upon which a question may properly be raised. "We therefore feel it our duty to grant the motion to withdraw the writ and papers in this case, without prejudice.

Motion granted.  