I am imable to concur in the conclusion arrived at by my brother Brady./'In my judgment the defendant’s proceedings were stayed *619by the non-payment of the costs awarded by the order of June 19, 1878. It was before that date that plaintiff noticed the cause for trial. Indeed, such notice was for the prior February Term. 'That notice may have been a waiver of any statutory stay resulting from the non-payment of motion costs previously awarded, so far at least as to enable the defandant to prepare for trial and to meet his adversary thereon. But-1 am at a loss to perceive how such a notice could amount to a waiver with respect to costs subsequently imposed. Can it be possible that where a party once notices a cause for trial, the statute ceases to be operative with regard to the costs of all future motions. It seems to me not. I cannot but think that the defendant had no power to move the dismissal; that such dismissal was no mere irregularity, but a direct violation of the statutory stay, and that it should be set aside as entirely unauthorized. /
Upon the other point, I think the service of notice of entry of judgment is in such doubt, upon the affidavits, that it ought not to be found as a matter of fact. Before a party should be absolutely shut out, because of the lapse of the year, notice should be most clearly established. Then too the course pursued by the defendant seems to point to a belief, upon his part, in a formal but really ineffective service upon the attorney. Else why did he wáit wntil the expiration of the yearr before giving the plaintiff unmistakable notice, by sending the sheriff with an execution ?
I am in favor of reversing the-order and granting the motion to set aside the judgment of dismissal, but, as there was some negligence upon the part of the plaintiff’s attorney, without costs.