
    Samuel Murray et al., Plaintiffs in Error, v. Francis Whittaker et al., Defendants in Error.
    ERROR TO MORGAN.
    Where a case is brought from the Circuit to the Supreme Court, and remanded, the defendant in the Circuit Court is presumed to know that the case is returned and docketed without notice of the fact.
    Either party may procure the record from the Supreme Court, and have the case placed on the docket of the Circuit Court for further proceedings; and the opposite party will after that be governed by the action of the Circuit Court.
    While it might be a better practice for the Circuit Courts to cause notice of the filing of the record in such cases to he given, yet it is not in the power of the Supreme Court to make a rule in that regard.
    The opinion of the court embodies a statement of the case. The proceedings complained of were had before Woodson, Judge.
    M. McConnel, for Plaintiffs in Error.
    D. A. Smith, for Defendants in Error.
   Skinner, J.

The record of thiis case shows that the cause

had been remanded on reversal of a former judgment, by this court to the Circuit Court of Morgan county, for trial de novo, and that at a term of said court prior to the October term, 1854, the cause was docketed and continued to the next term. At the next term, judgment by default for want of a plea, was rendered against defendants below, and the plaintiffs recovered judgment for their debt and damages.

At the same term the defendants appeared, and on their motion this judgment was set aside. The defendants then pleaded to the action, and moved for a continuance upon affidavit, setting forth defence to the action, and inability to make such defence on account of the absence of a material witness; and alleging as excuse for not having obtained the attendance of such witness, that neither the defendants nor their attorney had had any notice or knowledge that the cause had been docketed for trial in the Circuit Court until that term.

The court overruled the motion. The cause was tried and judgment rendered against the defendants below; and they here assign the refusal to continue the cause for error.

The defendants below had notice of the pendency of the cause in this court, and were bound to know that the same was remanded for further proceedings in the Circuit Court. Either party could have procured the record of this court, and, upon motion in the Circuit Court, have had the same filed, and the cause docketed in that court for further proceedings; and, in such case, the opposite party would be bound by the action of the Circuit Court in the cause without further notice.

There is no statutory regulation requiring notice to the opposite party, upon the filing of the record of this court in the Circuit Court for further proceedings, and this court has no power to make rules of practice for the Circuit Courts.

The better rule of practice for the Circuit Courts would seem, from analogy, to be to require the record, upon motion in open court, to be filed, and the cause to be docketed, and to stand continued for trial at the next term, unless the party filing the record shall prove notice in writing to the opposite party, served ten days before the term at which the record is so filed, of his intention to file such record and demand a trial, or further proceedings at such term.

Judgment affirmed.  