Byrd v. McDaniel
Supreme Court of Alabama
BbeoR to the Chancery Court at Greenville. Heard before the Hon. J. W. Lesesne. The original bill in this case was filed in September, 1846, and the defendant answered in February, 1847. At the July term, 1847, on motion of the defendant, the bill was dismissed for want of prosecution, under .the thirty-third rule of chancery practice.
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BbeoR to the Chancery Court at Greenville. Heard before the Hon. J. W. Lesesne. The original bill in this case was filed in September, 1846, and the defendant answered in February, 1847. At the July term, 1847, on motion of the defendant, the bill was dismissed for want of prosecution, under .the thirty-third rule of chancery practice. In March, 1848, in vacation, the complainant hied a petition, asking that the order of dismissal might be set aside, and the canse be reinstated on the docket; and at the ensuing term the chancellor made an order granting the prayer of the petition — setting…
1Opinion of the CourtChilton, C. J.
—The chancellor was wholly without jurisdiction to reinstate this cause at a term subsequent to that at which it had been dismissed and finally disposed of, no motion having been made for reinstating at the term at which it was dismissed, and continued to such subsequent term. The defendant might, therefore, have treated the whole proceeding as coram, non judice, after the cause was again put upon the docket, or (which would have been, perhaps, the more appropriate course) have applied to this court for the writ of prohibition, to arrest the unauthorized action of the chancellor in proceeding…
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