delivered the opinion of the court:
The plaintiffs in error instituted suit in the circuit court of Chickasaw county, against the defendant, in 1867.
The minutes of said court show that at the April term, thereof, 1872, the suit was dismissed; and at that, the April term, a motion was made by the plaintiff in error to docket the said oause, which was overruled by the court, and hence, the case is brought to this court by writ of error.
It is contended on the part of the plaintiffs in error, that the mere entry on the minutes of the court that the suit is «‘dismissed,” would not justify the clerk in omitting to con*748tinue the cause on the docket, and the court, therefore, erred in overruling the motion to redocket the case.
Although the judgment of dismissal is conceded to be informal, the clerk had reason to believe that it was a final disposition of the case, and until that order of the court was set aside, he had no right to disregard it, and continue the cause upon the docket. It was not for him to assume the judicial function to determine the effect of the order of the court, purporting to be a dismissal of the case, and he, therefore, acted properly in not continuing the case on the docket.
The cause was discontinued, and the court did not err in overruling the motion to redocket it.
A discontinuance is either voluntary or involuntary. Voluntary, where the plaintiff withdraws his suit; involuntary, where in consequence of some technical omission, mispleading, or the like, the suit is regarded as out of court, as where the parties undertake to refer a suit not referrable, or omit to enter proper continuances. Graham’s Practice, 493.
A discontinuance is somewhat similar to a non-suit, for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and defendant is no longer bound to attend. 3 Blackstone, 296, and 1 Bouvier’s E. D., 481.
If a cause be non pross, and not reinstated at the same term, it is discontinued, and cannot be reinstated at a subsequent term. Riggs v. Chester, 2 Cranch’s C. C. Reports, 637.
We think the cause was out of court by the order of dismissal.
The judgment must be affirmed.