
    No. 59.
    William Dougherty and others, plaintiffs in error, vs. Seaborn Jones and others, defendants in error.
    [1.] Where the Court below, in the exercise of its discretion, on the showing of the defendants, that some of them from sickness, had not been able to file their answers, refused at the second term of the Court, after the bill . was filed, to allow the complainant to take his bill pro confesso: Held, that in such a case, this Court would not control the discretion of the Court below ; especially as there had been no order entered on the minutes of the Court, requiring the defendants to answer the complainants’ bill at the next term.
    In Equity, in Muscogee Superior Court. Decision by Judge Iverson, at November Adjourned Term, 1851.
    This bill was filed, returnable to May Term, 1851. At that term, the Court entered “Usual Rule” upon the Docket, but no order was entered on the minutes. At the next term, no demurrer, plea or answer having been filed, counsel for complainants moved to take the bill “ pro confesso.” This motion, defendant’s counsel resisted, and showed as a reason why the answers were not filed, that one of the defendants, Ann E. McDougald, was so ill, as not to be able to complete her answer, which was almost ready to be filed; that the answer of S. Jones, was complete but had been mislaid by Col. Holt, who was absent by leave of the Court. The answers of Alexander McDougald, and Duncan McDougald were ready to be filed. The Court granted two days to defendants, at the end of which time the answers were all filed except that of Mrs. McDougald, who was still confined by sickness, and whose counsel was absent under leave of the Court. The Court granted further time to file her answer, and refused the motion to take the bill .pro confesso.
    
    To all of which rulings and decisions, counsel for complainants excepted, and have assigned error thereon.
    William Dougherty, for plaintiffs in error.
    Benning, for defendants in error.
   By the Court.

Warner, J.

delivering the opinion.

The alleged ground of error in this case is, the refusal of the Court below to allow the complainant to take an order at the second term of the Court, to have his bill taken pro confesso, under the circumstances stated in the record. The Court, in the exercise of its discretion, refused the application on the showing made by the defendants. We see no good reason why we should control the discretion of the Court in this case; especially, when it is apparent, that there was no order of the Court entered on the minutes, .requiring the defendants to answer the complainant’s bill at the next term of the Court. Let the judgment of the Court below be affirmed.  