The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-03
B. Walker & Bro.
No. 1926 and No. 1926 VS..
Il. Hasser,

| II. HaSSef,
Mr.. Justice Harris deIivered the opinion
of the court.
On the 3Oth day of November, 1860, plain
| tiffs in error sued out an attachment from
the circuit court of Yalabusha county
against the estate of the defendant which
was levied on the property OF defendant
On the 2lst February, 1861, the defendant by
his attorney, in fact entered an appearance
on the back of the attachment, with leave
to plead or demur to the declaration when
fled and waving notice by publication or
otherwise. On the 25th April, '6l, the de-
claration was fled At the October term of
the circuit court, the case was continued by
plaintiff ut his cost At the April term, 1862,
Judgment appears in the record, against
plaintiff and his securities,on the attachment
bond, Diminishing the cause for want of
prosecution, and for cost Of suit i'll favor OF
defendant.
At the April term of the circuit court,
U966) a motion was made by plalntln Ill er-
ror, to set aside the Judgment by default and
re-instate the cause on the docket, upon all
davit fled, showing that it was dismissed
from the docket in the absence Of plaintiff
in the year 1862, and that the cause u &C
ton is Just, &c.
The court overruled this motion, bill of
exceptions was filed, taken and allowed, and
the cause brought to this court on writ of
error.
No appearance is made by the defendant
in error in this court, and it does not appear
in this record upon what ground the jugd-
ment of the court below refusing the mo-
ton, was founded The cause is presented
here by counsel for plaintiff in error, And
it is insisted that the motion should have
been allowed, and the cause Ieinstated, I'M
der the ordinance of the convention, adopted
23d August 1865. G. n, S. 3. Which provi-
ded that in all cases in which Judgments
have been rendered in the circuit courts of
this State since the 9th of january, 1861 and
prior to this date, the party against whom
such Judgment has been rendered shall be
entitled to a new trial, upon his filing an af-
fidavit that he was unavoidably absent from
the court when the Judgment was rendered,
at the time Gifts rendition, and that he had
no attorney present in court, and that he be-
lieves that the Judgment is unjust.
The affidavit appearing in the record, fully |
brings the case within the provisions of the |
ordinance requiring the allowance of a new |
trial. And in the absence of any argument, |
briefor suggestion, by the defendant or his
counsel, involving the validity of that drdi-
nance, we are not disposed to investigate it
IN the argument Of, the plaintiff alone, who
insists on Its validity. We sit here to decide
The issues, properly made by the parties liti-
yaut. and not to make issues for them, or to I
determine questions-neither made in the
,ourt below. nor made, nor discussed here.
Treating the ordinance, therefore, as it is
reated by the parties to this litigation, DO
ar as the records shows, we think the mo-
ion in the court below to reinstate the cause
hould have been granted; and a new trial
flowed.
Let the Judgment be reversed, and cause
emanded for further proceedings.