
    McDonogh v. Dutillet et al.
    Wher.e a plaintiff, in an action in which there is no reconventional demand, fails to appear on the day fixed for the trial, either in person or by attorney, to prosecute his suit, no final judgment can be rendered against him; the judgment should be one of non-snit. C. P-491, 532, 536,
    APPEAL from the District Court of Plaquemines, Rousseau, J.
    
      Roselius, for the appellant.
    
      Bradford, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a petitory action for a tract of land situated in the parish of Plaquemines. There was also an injunction, prohibiting the defendant from selling the land. The suit was at issue in the late court of the First Judicial District, but under the new organization of the courts was transferred, on the 20th of October, 1846, to the court of the Second Judicial District, which includes the parish of Plaquemines, in which the defendants are domiciled. On the 13th of January, 1847, the case was taken up, and afterwards, final judgment was rendered against the plaintiff, and he has appealed. It appears by the record that the plaintiff was not present at the trial, nor was any appearance entered preyious to the rendition of the judgment.

The judge erred in rendering final judgment against the plaintiff, on his failure to appear a.nd prosecute his suit. The right of the plaintiff voluntarily to abandon his suit, on paying costs, at any time before judgment, when it is before the court, and until the jury is about to withdraw, when the case is before a jury, is given to parties in the Code of Practice, arts. 491, 532. The usual order on the non-appearance of a plaintiff, where there is no reconventional demand, is of nomsuit. On this point, the practice is, we believe, invariable, "Vide Code of Practice, 536.

The judgment of the District Court is, therefore, reversed, and judgment is rendered for the defendants as in case of non-suit, the plaintiff paying the costs of the District Court, and the defendants those of this appeal.  