This record presents the question, whether the court below erred in refusing to dismiss the cause at the March term, 1859, and by granting a continuance at the defendant’s cost. The motion was entered by plaintiff upon an agreement of the parties, and was resisted by the defendant. The bill of exceptions fails to disclose the evidence upon which the court determined this motion. For aught that appears in this record, there may have been an abundance of evidence establishing the fact that it would have been manifestly unjust to execute the agreement. It might have appeared in evidence that the plaintiff had released defendant from this agreement, or that there were written conditions annexed which had not been complied with by plaintiff, or that it had been obtained by fraud or duress; and as the record fails to state that it contains all of the evidence heard on the motion, we must presume that the court below was fully warranted in the rendition of that judgment. The defendant unquestionably had the right, on the hearing of the motion, to introduce evidence to defeat its allowance, and that he did, must be presumed, as it is not rebutted by any statement in the record.
The plaintiff, by voluntarily dismissing his suit, at the succeeding term, waived any error the court below may have committed, in deciding the motion to dismiss. From that decision he has no right to appeal or prosecute error, as it was not a final decision, determining the case. Nor has he any right to have the final judgment of the court dismissing the case reviewed, as that decision was made at his request and on his own motion. Were we to entertain jurisdiction, and reverse the decision of the court on the motion, the case would present the very singular attitude of a cause remanded for further proceedings, when the plaintiff had previously dismissed it, and which had been finally terminated as he desired, and against which the defendant does not complain. It would be to require the court to proceed to try an incidental question in a cause, which had once been-in the court, and finally determined to the satisfaction of all parties. If the plaintiff had desired to have that decision reviewed, he should have renewed his motion, at the next term, and if that had been rejected, he should have suffered the cause to go against him without his assent, and then prosecuted error.
Nor can we perceive that any injury has resulted to the plaintiff, of which he has a right to complain. He was plaintiff in this replevin suit, had acquired the possession of the property, then in controversy, and the continuance of the cause could work him no material injury. Had he entered a motion to dismiss the suit, at the time when he submitted to the non-suit, it would doubtless have been allowed according to the terms of the agreement, unless the facts had shown that it was improper to have granted the motion. But failing to pursue this course, and voluntarily submitting to a non-suit, we are unable to discover anything in this record from which the plaintiff can appeal or prosecute a writ of error.
For these reasons we are of the opinion that the judgment of the court below must be affirmed.
i Judgment affirmed.