Amis v. Koger, 7 Leigh 221

CARR,. J., delivered the resolution of the court. We are told, in several of our cases, that these

summary proceedings on motion, being a departure from the course of the common law, are to be taken strictly. But there néeds no strictness to pronounce, that this proceeding of the county court is full of error. In the first place, there was no power in the court, without consent, to continue the case from June till August term 1820, passing by entirely the July term. If the court could thus pass over one term, it might twenty. This was a clear discontinuance, and the motion out of court. But it was discontinued several times after; if that could1 be discontinued, which was no longer in court.

And six years after, without appearance, or any subsequent notice, the motion was made, and judgment entered. Nothing could be better calculated to entrap the defendant, and deprive him of all chance of defence. The order of the circuit court, dismissing the writ of- error allowed by the judge in vacation, was right; but the circuit court erred in denying the writ of error prayed in the petition presented to the court at the same term. The judgment of the circuit courtis to be reversed, and the cause sent back with directions to allow the writ of error to the judgment of the county court.