
    Johnston vs. Ditty and Smith.
    Under our acts of Assembly, it is not necessary to enter the eontinu-Since of any particular cause; the general continuance at the end of each term will prevent a discontinuance.
    Where judgments have been rendered by a judge who had no authority under the constitution to render them, they are merely void, and the causes may, after the expiration of the term, be reinstated upon the docket, and proceeded in as if no such judgment had been rendered.
    This was an action of debt in the detinet, against the defendants in error as executors de son tort. The writ was returnable to the August term, 1831, of White circuit court. At that term a declaration was filed, and the defendants put in a demurrer thereto. At the same term, John H. Martin, Esq., having been commissioned by the Governor, by virtue of the act of 1827, to hold the courts in the third circuit during the indisposition of Judge Williams, held the court, and the demurrer came on to be argued, and was sustained, whereupon the defendants obtained a judgment that they go hence without day, &c. Thus the matter remained until the May term, 1834, of the circuit court, at which time, the costs not being paid, and other judgments rendered by Jno. H. Martin, Esq. havingbeen declared void by the supreme court, the defendants applied to the court by petition to have the cause reinstated on the docket. Th,e plaintiff objected by his counsel, insisting that although the judgment was void, the cause having remained out of court for such a length of time, it operated as a discontinuance of the cause and the court could not' then restore it, and again proceed to try it.. „
    The court below refused to reinstate the cause, añd dismissed the petition, whereupon the defendants prosecuted their writ of error to this court.
    
      'A. B. Lane, for plaintiff in error.
    At August term, 1831, when John H. Martin, Esq. was presiding, under an execu(-*ve appointment by virtue of the act of 18277 this cause was determined in favor of the plaintiffs in error, who were defendants below, and a judgment was entered that they recover costs. At the May term, 1834, of the circuit court, plaintiffs in error petitioned to have the cause restored to the docket, and the court refused on the ground that the cause was discontinued, from which an appeal in error is prosecuted to this court.
    The act of 1794, ch. l,sec. 8, (1 Haywood and Cobbs, 189,) provides that no cause shall be discontinued on account of the non-attendance of the judge, but that all causes shall stand continued to the next term.
    In 5 Bacon’s Abridgment, page 475, it is said: “In debt the declaration was of Michaelmas term, and the plea roll of Easter term, and no continuance entered, and this upon demurrer was shewed to the court as a discontinuance, but they said the practice is never to enter continuances till the plea roll is entered up, though the declaration be of four or five terms standing.”
    There being, in law, no court held in August, 1831, the case stands in the same condition it would have stood if the clerk had omitted to docket it regularly from term to term; and it is as much the duty of the parties to attend as though Judge Martin had no.t have presided; if the cause had disappeared by accident, either party might call for the production of it, and if not produced,- have the proper steps taken; but the plaintiff not having called up his cause for trial all this time, cannot, when the defendants ask for it to be put on the docket and have it regularly and legally disposed of, object that, their suit is discontinued. ' After issue, a plaintiff cannot discontinue without leave of the court, and such a thing as a discontinuance without a record being made to that effect, is not believed to exist in this country. The causes tried by Judge Martin being still undisposed of would be continued, under a general order, usually in practice made at the end of each term continuing all unfinished business. In our practice, no cause is continued by special order unless it is reached and continued by consent or an affidavit.
    It is true, causes are required to be docketed, but the docket is no part of the record; and being only to entitle the parties to a trial at their proper time, a simple omission to docket the cause cannot work a discontinuance.
    
      S. Turney and Haggard, contra,
    
      M’Cormick replied.
   Peck, J.

delivered the opinion of the court.

The question which arises upon this record is, whether this cause, determined by Judge Martin, under special appointment of the Governor, by an act of assembly which was declared unconstitutional, and the authority attempted to be communicated to the Judge, void, is discontinued. Under these decisions, the causes were remanded to the circuit court to be proceeded in, but it is supposed that as the judgments were declared void and no step taken since in the causes, that they stand abated or discontinued in the courts to which they have been remanded. It is obvious there could be ho abatement; the circuit court being, diiected to proceed, it must be understood that the proceedings should. follow in that court, as if no judgment had been given. If the parties have rested upon their rights, the mere suspension would not of itself work a discontinuance or abatement of the suit. See act of 1794, ch. 2, Court law, sec. 8, 43, 44. Under our acts of assembly it is not absolutely necessary to enter a continuance in the particular cause, the general continuance at the end of the term will prevent a discontinuance. And if there be any cause why an abatement shall be entered to make it effectual, the judgment, of the court consideratum est must be seen, that we may know the mind of the court had been directed to the object. The causes are merely continued in court, subject to be called up and proceeded in accord-' ing as they may be found in the several courts as if though the special judge had never acted upon them.

Judgment reversed.  