
    
      Davidson & Simpson vs. Middleton & Dawson, survivors of J. Dawson & Co.
    
    Writ issued to May, 1827, and pleadings made up to October Term, 1827, but the case not docketed. In June, 1829, plaintiffs, without giving notice to defendants, procured an order that the case be docketed; and in November following, defendants filed a notice of discount. The case was not placed on the docket until October Term, 1831, when the plaintiffs, without giving notice to the defendants, procured another order that the case be docketed, which was done. On motion made to strike the case from the docket, held that defendants, by their notice of discount, waived all objection to the regularity of the previous order to docket; that it was the duty of the clerk to comply with that order, and his failure to do so could not be visited on the plaintiffs; that, therefore, the plaintiffs were not out of court, because the case was not docketed until October, 1831.
    
      Before Martin, J. at Charleston, February, 1832.
    The report of His Honor, the Presiding Judge, is as follows:
    “ The defendant’s counsel submitted a motion to strike this case from the docket. The facts upon which the motion was founded were, that the writ issued to May Term, 1827, and the declaration, pleas and issue, were filed for October, 1827. But the case was not. docketed, as defendants allege, up to June, 1829. At that Term, the plaintiffs’ couasel procured an order of Court, that it be placed on the docket. This order, it is insisted, was obtained without notice to the defendants, or their attorney. The case, however, notwithstanding this order, was not docketed. At June Term, 1831, another order of Court was made, (and admitted to have been made without notice,) that it be placed on the docket, and the case was docketed for October. 1831. The defendants’ counsel insisted that the case was out of court before the order of June Term, 1829.' — ■ That that order having been made, as he alleged, without notice to defendants, they were not bound by it. That if it be admitted they were concluded by that order for the time, still, as the plaintiffs did not docket the case for a year and a day under the leave then given, the subsequent order of June, 1831, was void, not only because the plaintiffs were out of court, but because it was admitted to have been made without notice. The plaintiffs’ counsel resisted this motion, and assigned the following facts and reasons : He stated that no docket was made up for October Term, 1827, and this was the reason why the case was not docketed in its order of time. He insisted that it was docketed for January, 1828, but that it was afterwards discovered, (as he supposed,) that it was not at its proper place, and was stricken off, and another interlined. The docket was produced, and it did appear to have been inserted on the docket for January, 1828, and afterwards stricken out, and another inserted. But whether it was in fact intended tobe placed there, or whether the title of this case had been confounded with another, in which some of these parties were litigant, and which was ultimately substituted at that number, I thought doubtful. The plaintiffs’ attorney further insisted that, although he could not recollect distinctly having given notice of the motion made at June Term, 1829, he must suppose that he had done so, because it was reasonable and proper that it should have been given. — ■ That whether he had done so or not, the defendants had acquiesced in that order, and acknowledged the case properly in court, or on the docket, by having subsequently filed, (in November, 1829,) an additional discount, which was produced. That as to the order of June, 1831, he had not supposed notice necessary, because, as he stated in his own justification, the parties had long been making efforts at compromise, or arbitration, and an affidavit in relation to this part of the case was submitted. I refused the defendants’ motion. I- did not conceive that I had any power to interfere with either of the orders made by my brethren on the circuit.
    I take the rule to be, that although one Judge, (where circumstances have transpired since the making of an order, which render it improper that it should be. enforced,) may modify or suspend such order, if it comes before him incidentally, he has no power or authority to reverse it or set it aside. And even the power to which I have alluded should be exercised with great care and delicacy. In this case nothing has occurred which would authorise me to interfere, or to say that my brethren have made an improper order. If that must be said, it must be declared by the Court of Appeals.”
    The defendants appealed, and renewed their motion to strike the cause from the circuit docket, on the following grounds:
    1. That the case not having been docketed, nor any proceedings had thereon for more than a year and a day, it was out of court, and plaintiffs must begin de novo.
    
    
      2. That the cause, being out of court by laches, could not be revived by the simple order of a Judge.
    3. That the motion to docket was not a motion of course, and ought not to have been granted without notice to defendants’ counsel.
    4. That the cause was docketed on an ex parte motion, by surprise and improperly, and the defendants should be reinstated in the legal rights they had before such orders made.
    5. That the decision of the presiding Judge was contrary to law.
    
      Ford and DeiSaussure, for the motion.
    -contra.
   Curia, per

O’Neall, J.

In the case ex parte A. W. Thomson, 2 Bail. 116, it was held that the neglect of a party to docket a cause for more than a year and a day after the proceedings were made up, was a discontinuance. The application of the rule of that case to the one under consideration would be inevitable, if the failure to docket the cause arose from the neglect of the plaintiffs or their attorneys. It appears that, on the 19th of June, 1829, an order was made that the cause be docketed. This order, it is said, was obtained without notice to the defendants or their counsel: if this be so, the subsequent act of the defendants, in filing a discount, on the 4th of November, 1829, was a waiver of all previous objections to the regularity of the continuances of the cause, and admitted it to be rightly in court. Under the order of June, 1829, it became the duty of the clerk to docket the cause; his failure to do so cannot be visited on the plaintiffs. They had the right to regard the case as docketed, from the time the order was made. The order to docket necessarily concludes the defendants from urging that any other act was to be done in the cause before it was ready for trial. There was, therefore, no necessity for the plaintiffs to present the papers to the clerk to procure the case to be docketed.— This was, of course, after the order.

The motion to reverse the decision of the Judge below is dismissed.

Johnson, J. concurred.  