
    *Amis v. Koger.
    February, 1836,
    Richmond.
    Practice — Passing over Term — Discontinuance.—Notice is given by K. to A. of a motion to be made at June term of a county court, for money paid by K. as A.'s surety; theniotionis continued without A.’s consent from June term to August term, passing by the intermediate July term : Head, this was a discontinuance, and a judgment subsequently rendered for the plaintiff on the same notice, is therefore erroneous.
    Writs of Error — Allowance in Vacation — Refusal to Allow in Term.— The judge of a circuit court, in vacation, allows a writ of error to a judgment of a county court: hut the writ of error is dismissed at the next term of the circuit court as improvidently allowed, since the judge in vacation had no authority to allow it; then, a writ of error is prayed in term time, and denied : Hm.n, the writ of error allowed by the judge in vacation was properly dismissed ; but as the judgment of the county court was erroneous, it was error in the circuit court not to allow the writ prayed in term time.
    Koger gave notice in writing to Amis, of a motion to be made against him in the county court of Lee, at June term 1820, for a judgment for money paid by Koger as Amis’s surety in a forthcoming bond. At that term the notice was proved ; and, without calling the defendant, the motion was continued, not till July term, but till the next August term. From July term 1820 to March term 1821, both inclusive, there was a general order entered at each successive term, that all suits, attachments and motions, not otherwise disposed of, should be continued till the ensuing term. But at April term 1821, there was no such general order. Meantime, this motion of Koger against Amis was never put upon the docket: it was docketed for the first time, at May term 1821; when (but again without having the defendant called) a continuance of it to the next June term was entered on the docket; and thenceforth to April term 1826, inclusive, it was in like manner continued on the docket at each term to the next ensuing *term. At May term 1826, Koger made his motion, and thereupon the county court (still without having the defendant called) gave judgment against Amis for S46 dollars with interest &c. and costs. Upon this judgment Koger sued out a ca. sa. upon which Amis was taken in execution.
    In January 1829, Amis applied to the judge of the circuit court, in vacation, for a writ of error to the judgment, upon his giving security for costs only, so that the writ should not operate as a supersedeas to the judgment, under the statute of 1824-5, Supp. to Rev. Code, ch. 98, p. 127. The judge allowed the writ of error. But at the September term 1829, the circuit court dismissed it, as having been improvidently allowed. Whereupon, at the same term, Amis presented a petition to the court, praying the writ of error; which the court denied.
    Afterwards, he applied to this court for a supersedeas to both the orders of the circuit court; which was allowed.
    The cause was argued here, by Robinson for the plaintiff in error, and Johnson for the defendant,
    upon the following objections taken by the former: 1st, That the first step in the proceedings of the county court was irregular, in making any order on the motion without having the defendant called, he not having appeared then or ever after-wards; Wilkinson v. Hendrick, 5 Call 12; Parker v. Pitts, 1 Hen. & Munf. 4. 2nd, That there was a discontinuance of the motion, by the continuance of it at June term 1820 to the next August term, passing by the intermediate July term; and there were divers discontinuances afterwards, since the general order for the continuance from term to term of business undisposed of, was not applicable to a summary motion like this, especially while that motion was not docketed ; in consequence of which discontinuances, *the motion at length made at May term 1826, was, in effect, a motion without notice. And 3d, that though the writ of error allowed by the judge of the circuit court in vacation was improvidently allowed, since the statute only authorized the circuit court in term time to allow the writ in such cases, yet the circuit court erred in denying1 the writ upon the petition presented to the court in term.
    
      
      Practice — Passing over Term — Discontinuance.—In Harrison v. Coin., 81 Va. 493, it is said : “The case of Amis v. Koger. 7 Leigh 223, was decided in 1836, and arose before the act of April 16, 1831, R. C. 1819, p. 142, section 21. Jutkík Cakb said in that case : 'In the lirst place, there was no power in the court, without consent, to continue the case from June till August, passing by entirely the July term. Tf the court could then pass over one term, it might twenty. This was a clear discontinua,nee, and the motion out of court.’ Rut the law now provides, as we have seen in section 26, chapter 201, V. C., of 1873, that there shall be no discontinuance for such cause. And section 16, of chapter 161 of the Code, provides further : ‘All causes upon the docket of any court, and all other matters ready for its decision, which shall not have been determined before the end of the term, whether regular or special, shall, without any order of continuance, stand continued to the next term. ’' ’ See also, citing the principal case, footnote to Hale v. Burwell. 2 P. & H. 608. See § 3124, Code 1887.
    
    
      
      Writ of Error — Allowance in Vacation — Refusal to Allow in Term. — See Morris v. Deshazo, 4 Rand. 460 ; Jones v. Com., 2 Va. Cas. 224. See monographic note on “Appeal and Error” appended to Hilly. Salem & Pepper's Ferry Turnpike Co.. 1 Rob. 263.
    
   CARR,. J.,

delivered the resolution of the court. We are told, in several of our cases, that these summary proceedings on motion, being a departure from the course of the common law, are to be taken strictly. But there néeds no strictness to pronounce, that this proceeding of the county court is full of error. In the first place, there was no power in the court, without consent, to continue the case from June till August term 1820, passing by entirely the July term. If the court could thus pass over one term, it might twenty. This was a clear discontinuance, and the motion out of court. But it was discontinued several times after; if that could1 be discontinued, which was no longer in court. And six years after, without appearance, or any subsequent notice, the motion was made, and judgment entered. Nothing could be better calculated to entrap the defendant, and deprive him of all chance of defence.

The order of the circuit court, dismissing the writ of- error allowed by the judge in vacation, was right; but the circuit court erred in denying the writ of error prayed in the petition presented to the court at the same term.

The judgment of the circuit courtis to be reversed, and the cause sent back with directions to allow the writ of error to the judgment of the county court.  