¶2It appears by the "bill of exceptions, that this case was at issue on the 22d of January, 1858, and that a judgment of non-suit was entered at the succeeding term, on motion of the defendant, for want of a notice of trial by the plaintiff; the plaintiff objecting to the judgment and offering to go to trial on the merits.
¶3We think this judgment erroneous.- Under our practice, (in the absence of any statute or rule on the subject,) either party may notice a cause for trial after it is at issue, and have it placed on the calendar. It is tried in its order, and is no more in the control of the plaintiff than of the defendant.
¶4Allusion was made, at the argument, to the former practice in the State of New York, by which the court was authorized to non-suit the. plaintiff, unless he noticed the cause for trial, and brought it to a hearing at the first term after it was at issue. But it appears that this was in consequence of a provision of their statute.
¶5We have no such statute, and in the absence of any, cannot follow their practice.
¶6Judgment reversed.