#### Alexander W. Black *vs.*William Kelly.

A case had been called once on the docket, and afterwards, on motion of defendant’s solicitor, a day was assigned for its hearing, of which complainant’s solicitor had notice. On the day assigned, complainant’s solicitor did not appear in Court until near the hour for adjournment, and before he came in the bill was dismissed because of his not appearing, on motion of defendant’s *solicitor:*— Held, that the discretion of the Chancellor in dismissing the bill, was properly exercised.

The Chancellor is required to call the docket but once, and parties are required to be ready and present their causes for trial when they are called. After calling the docket through, the Chancellor obtains control of the order of business, and may prescribe when a cause shall be tried.

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1854.

On the 22d June, the following order was entered in this cause:

“ This case was twice called on the docket: the second time it was called, Thursday, 22d June instant, was fixed on and assigned for the trial of the cause. On the cause being called for trial on the day so appointed, and the solicitors of the plaintiff not appearing, on motion of Yeadon, Solicitor for the defendant, it is ordered and decreed that the hill he dismissed.

(Signed,) Geo. W. Dargan.”

Afterwards, on the 80th June, the following order was entered:

“ On motion of J. B. Campbell, complainant’s solicitor, it is ordered that he have leave to file the affidavit submitted herewith.

(Signed,) Geo. W. Dargan.”

The affidavit is as follows:

“ Jas. B. Campbell says, that he has been present in Court at *249the call of this *case*— once only during the term. On that occasion, Mr. Yeadon, the defendant’s solicitor, suggested, that a day for the hearing be appointed, remarking that it was a cause, which he should press to trial. This deponent replied, that he also desired a trial, and if he did not, he conceded that the defendant was entitled to it. That his only difficulty was in getting the testimony of one Doctor Jones, which he deemed important; but if he could not procure the attendance of that witness, he would go to trial without him ; and asked, for that reason, that the appointment might be at as late a period in the term as possible. Mr. Yeadon then remarked, to the effect, that he was anxious to get through with his causes so as to be able to leave for Europe, and that he had a letter from Doctor Jones, which he would send to Mr. Campbell, and that might satisfy him as to his testimony. This deponent then said, if the letter upon inspection should prove satisfactory, he would agree to any day of the term, except of *the third*week, during which he might desire to be absent, as he expected to be called upon by a member of his family who was ill, to go north on the 17th instant to return on the 25th instant. He was, in consequence of illness and death in his family, withdrawn from the business of the Court from the 13th to the 19th instant, and he knows he never had any agency or part in the appointment of this cause for hearing on Thursday the 22d day of June. He had no knowledge of its having been so appointed till informed by his Honor, the Chancellor, on Wednesday the 21st instant.

“ He would not have consented to the appointment of that day, when the only opportunity he had 'to signify assent or dissent was offered for the reason that he expected to be absent from the city as above.

“ On Wednesday, the 21st instant, his Honor, the Chancellor, called his attention to the case, stating that it Jiad been appointed for the next day,, but was the *second*in order, and as it was a short case, and as the other appointed would take *250more time, he proposed to reverse the order and hear this cause first.

“ This deponent made no objection, either to the appointment of the day, or the reversal of the order. Mr. Yeadon was not present to object or assent, and this deponent received no further notice from any one, but prepared and was ready for a trial on Thursday, and expected to have an opportunity as soon as the case of Read *vs.*Read, then being heard, should be concluded. He was engaged till a little before two o’clock, at his office in Broad street, at which time he came out for the purpose of going to the Court House — -when, finding that it was raining, he turned to Edgerton & Richard’s store, and bought an umbrella, where he was detained a few moments in conversation with Mr. J. J. Middleton — came out with him ; and while they were standing in the street, Messrs. De Saussure and McCrady passed, and informed him that Read *vs.*Read was concluded. This deponent then hastened to the Court House, and was there informed that this cause had been dismissed in consequence of his absence. Upon examination of the order, he found it there stated, that the trial of the cause had been fixed for that day, on his, this deponent’s motion. He called the attention of the Court to this error, and Mr. Yeadon very properly concurred that it was an error, and that the appointment had not been made on motion of Mr. Campbell.

“ His Honor, the Chancellor, thereupon erased the error from the order, remarking at the same time, as he was understood by this deponent, that he was still of the impression that the appointment had been made on motion of Mr. Campbell.”

The complainant appealed, and moved that the cause be restored, to the docket upon the grounds :

1. Because the circumstances under which the cause was *251called, as if appointed bj consent, and the bill dismissed in the absence of complainant’s counsel, did not warrant the same.

2. Because the Chancellor’s declaring that the cause was beyond his control, except by consent of defendant’s solicitor, and thereby preventing a formal motion to restore, was an error of law, and the complainant was entitled, on motion, and sufficient cause shown, to have the cause restored to the docket and set down for hearing.

3. Because, at any time during the term, and before enrolment of a decree, it is within the control of the Chancellor to erase, amend, alter or reverse the same; and the decree, in this case, should have been set aside by the Court, without the consent of the parties.

*Campbell,*for appellant.

*Yeadon,*contra.

The opinion of the Court was delivered by

W Audi aw, Ch.

This case is submitted to us on the brief without argument; and where counsel refrain from all attempt to enlighten us by illustration of principles and citation of authorities, we may be excused in attaining -and declaring our determination in a perfunctory manner, and without elaborate research or discussion.

Taking the case as made by the affidavit of the solicitor of plaintiff and appellant, we do not perceive that any sufficient showing is made against the Chancellor’s exercise of discretion in dismissing the bill. It is stated and admitted in this affidavit, that at an early day of the June sitting, the affiant received notice from the solicitor of defendant that the trial of this cause would be pressed, and acknowledged that defendant *252■was entitled to a trial; that tlie day before the order of dismissal, the Chancellor informed the affiant that the cause was set down for hearing the next day, and that a cause precedent in order would be postponed; and that affiant then made no objection to the time and order of hearing mentioned to him, nor intimated that the day of hearing had been assigned without his consent; and yet, that the solicitor did not appear in Court until 2 o’clock, within an hour of the time of adjournment, and after the bill had been dismissed in consequence of his absence.

It is not suggested in the affidavit that any express application was made to the Chancellor to vacate the order of dismissal and restore the cause to the docket, although it is intimated in the grounds of appeal that the Chancellor expressed.an opinion that the order could be vacated by consent only, and thus repressed a direct motion to vacate and restore, as the opposing counsel resisted. The brief, however, does not present a fit case for the discussion bf the power of the Court over its previous orders at the same sitting; and the appeal may be disposed of by considering the propriety of the order actually made.

In the regular proceedure of the Court, the Chancellor is required to call once, if the length of the sitting be sufficient for the purpose, and once only, all the causes on the dockets ; and all parties and their counsel are required to be in attendance on the Court, and to present their causes for trial when they are reached in regular sequence. The Chancellor, after calling the dockets from beginning to end, and allowing every party in his turn to offer his complaint or defence, obtains control of the order of business; and he may afterwards prescribe the course of hearing upon any arrangement which may seem best adapted to the convenient and satisfactory dispatch of business'. Where special days are assigned for hearing particular causes, he reasonably expects special punctuality in the attendance of parties, witnesses and counsel, *253and the most stringent exaction on his part 'in enforcement of such attendance cannot he 'fairly denounced as an abuse of discretion. In the present case, according to his own showing, the plaintiff failed to offer his claim for adjudication on the regular call of the docket, and another day for trial was assigned, which seemed to be satisfactory to his solicitor, as he intimated no objection to the time assigned when premonished of it by the superogatory courtesy of the Chancellor ; yet on neither occasion was the party in waiting and ready to proceed, as he should have been on both, and on the latter occasion, his solicitor, without exhibiting any sufficient excuse for his absence, or deputing any one to inform the Court of the reason of his absence, did not appear in Court until the judicial day was within an hour of expiration. We think that the discretion of the Chancellor, (really not the subject of appeal,) was rightfully exercised in mulcting the plaintiff with costs; and we suppose, without any rigid investigation of the matter, that costs only, and not inhibition of new suit, follow the order of the Chancellor.

It is ordered and decreed, that the decree be affirmed and the appeal dismissed.

Johnston, Dunkin and DaRGán, CO., concurred.

*Appeal dismissed.*