Helwig was plaintiff in a suit wherein IReinhold Schroeder was defendant, which was on trial in d;he Wayne circuit court. The parties had put in their ■testimony, and rested, when court adjourned for the day. 'The plaintiff desired to present requests to charge and llave his cause argued before the jury by his attorney, who failed to appear at the adjourned hour, and the court, after waiting 15 minutes, proceeded to charge the jury, who subsequently returned a verdict for the defendant. The plaintiff afterwards made a motion for a new ■trial, insisting that the court could do no more than non-suit the plaintiff, if he failed to proceed with his case after the trial commenced. The court overruled the motion. Plaintiff now asks that mandamus may issue requiring the circuit judge to vacate the verdict, and •allow him a new trial of the case upon such terms as may be reasonable and proper.
Held, that the writ must be granted. The circuit judge, under the circumstances, should have directed a nonsuit. The plaintiff had the right to withdraw his case, or abandon his suit, at any time before taking the verdict of the jury.