Cooley, Ch. J.-.
We do not think a clear case for a writ of mandamus is made out. When the defendants noticed the cause for trial this was in law a waiver of the previous non-suit, and plaintiff was entitled to proceed to a trial on such notice. But if the plaintiff was in doubt regarding the waiver, he knew that the case had been placed on the trial docket, and if he intended to
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dispute its right to be there, he should have moved to strike it off. Failing to do this, the circuit judge was justified in considering the case as standing regularly for trial:
Mandamus denied.