The appellant insists on rehearing that the motion of the complainant in the statutory proceeding on the law docket which went to the circuit court on appeal was reinstated on motion of complainant and is now pending. This fact was not asserted in the answer nor was it stressed on the hearing on submission on this appeal and as we construe the record it does not support this fact.
The record shows that the bill was filed on the 28th of November, 1942; that the proceeding in the circuit court on the law docket was settled between the parties and dismissed and defendant taxed with the costs on November 16, 1942; that motion was made on November 19, 1942, by plaintiff's attorney to reinstate the case for trial November 23, 1942; that this motion was withdrawn by separate paper filed signed by plaintiff's attorney on the 12th day of December, 1942. The only evidence in the record is the evidence offered by the defendant on this question consisting of the separate paper withdrawing the motion and the bench notes, which are not, in fact, competent evidence, but as we construe the bench notes, they do not show that the motion to reinstate was granted by the court and the cause restored to the docket. *Page 364
If in fact the case was restored to the trial docket on the motion of complainant, this would be a breach of the settlement agreement between the parties, and is a matter that can be presented to the circuit court by another motion to dissolve the injunction.
So far as appears from the record here, the application is without merit, and is overruled.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.