Siewerd v. Farnen

Robinson, J., delivered the opinion of the Court. We all agree that the judgment below must he stricken out. It must be stricken out because, the case having gone on the stet docket, ,there was no ajjpearance of record for the defendants when the judgment was entered; nor was there any notice, either actual or con ⁶²⁹ structive, of tlie trial of the case such as is required by the rules of the Court. The suit was brought at the September Term, 1882, by the appellee against the appellant and his brother, trading as F. H. Siewerd & Bro., for wages as clerk and book-keeper, alleging he had been discharged without cause before the expiration of the year.

Mr. ITenninghausen appeared for the defendants, and filed pleas denying the plaintiff’s case. Thereupon a commission to take appellant’s testimony was issued to New Orleans, where he has resided for over twenty years; and on the 28th of December, 1882, the commission and testimony were returned. The case, not being tried, went on the stet docket, and no further entry appears till the 17th of February, 1886, when Mr. Henninghausen ordered his appearance to be stricken out. On the 29th March following, a rule was laid on the defendants to employ new counsel, and the writ issued thereupon was returned “‘non sunt.” How, by the rules of the Court, it appears that when a case is on the stet docket, counsel may compel the opposite party to proceed to trial by giving such party five days’ notice in writing, which notice must be served on the attorney of record of the party to be affected by it, or left at his office;,.and if there be no appearance of attorney, then the notice must be set up in some conspicuous place in the clerk’s office, or be served personally on such party.

Rules 29 and 11. Ho such notice as is thus required by the rules of the Court was given in this case. The appellee’s counsel did however deliver to the sheriff, to be served on the defendants, a mutton notice of his intention to call the case for trial