are absent; because there would be no one to make such a motion. It would not apply to a case where the party was present and his attorney absent, unless he had other counsel. And if an attorney were present and his client absent, it would apply only in case he knew that his client would not be present, and also knew the cause of the absence. The general rule seems to be that a party knowing all the facts must state them to the court supported by an affidavit, if necessary, and ask leave to withdraw a juror and have the case continued. Because he should not be permitted to proceed with the trial and take the chances of a verdict in his favor, and, being defeated, assign his own want of prudence as a cause for a new trial.

1. Accident and Surprise.-The Supreme Court of California, under a code which provides that a party may be relieved from a "judgment taken against him through his mistake, inadvertence, surprise or excusable neglect," granted a new trial where the absence of the defendant and his attorney was caused by their reliance upon the promise of the plaintiff's attorney to notify defendant's attorney before taking up the case, and the failure to comply with such promise.

So, too, a new trial was granted where it appeared that there was a misunderstanding between the attorneys for the respective parties regarding the day set for trial, which caused one of them to omit making preparations for trial on that day, the moving party having presented the usual affidavit of merits, and also having asked for a continuance before trial.9

The same court granted a new trial where a case was tried in the absence of a party and his attorney, and it appeared that the moving party had employed an attorney on the day on which summons was served on him, and the attorney had ordered his clerk to enter the case on his journal, but the clerk forgot to do so; that after that the attorney was very busy examining abstracts and was under the impression that the answer day was the 23d, and found upon going

to court on that day that default had been entered. 10

But a new trial was refused by the same court where the attorney for the moving party, after a new trial had once been granted, went away into another county without leaving anyone to look after the case, and it was tried in his absence.11

So, too, a new trial was refused where it appeared that the case was set down for trial, and both the parties and their attorneys were present in court, and the attorney for the moving party, supposing that the case on trial ahead of his would last till after recess, went away to look after some private business, leaving his son in court to notify him as soon as the evidence was closed in the case on trial; that his son started after him as soon as the evidence was closed, but had difficulty in finding him, and a default was entered in his absence.12

The Supreme Court of Nebraska, under a code providing for a new trial for "accident or surprise which ordinary prudence could not have guarded against," refused to grant a new trial upon a state of facts similar to the last case. It appeared that the case had been reached in its regular order on the docket; that the attorney for the moving party had been present in court at about half past ten o'clock in the forenoon of the day on which trial was had, and supposed from the statements of attorneys that the other cases would occupy the entire day; that he requested the clerk to notify him if his case should be called; that notice was sent to his office but he was absent, and the person in charge thereof was notified, but he, however, seemed to have made no effort to notify the attorney. It was held not to have been a sufficient showing of diligence to come within the rule that "it is only where a party has been diligent, and through no fault of his, he has been deprived of a substantial right, that he is entitled to relief."

13

The same court granted a new trial where it appeared that the plaintiff and his attorney lived in another county, and plaintiff's attorney telegraphed the county judge before whom the case was pending, requesting him

10 Francis v. Cox, 33 Cal. 323.

11 Haight v. Green, 19 Cal. 113.

12 Mulholland v. Heyneman, 19 Cal. 605.

18 Kyle v. Chase, 14 Neb. 531; s. C., 16 N. W. Rep.

821.

to ask defendant's attorney if he would consent to a continuance; that the judge answered by telegram that "attorney will agree to a continuance for two weeks if reply is filed." The operator wrote "Abbott" in place of "attorney." The plaintiff's attorney then telegraphed Abbott accepting the terms mentioned in the answer of the judge, supposing that he represented the defendant, he being acquainted with Abbott, who was an attorney, but who had nothing to do with the case; and that the defendant's attorney, having heard nothing from the plaintiff, took judgment on his counter-claim.14

A similar case to Kyle v. Chase, and Mulholland v. Heyneman is Green v. Buckley, 15 in which the Kansas court, under a code which provides for a new trial for "accident or surprise which ordinary prudence could not have guarded against," refused a new trial where the affidavits of the moving party, who was his own attorney, set up that he was absent during trial because he expected the case on trial just before his case would last most of the afternoon; that he was led to believe so by the statements of attorneys who were engaged in the case on trial, but in no way connected with his case. Trial was had when the case was reached in its regular order on the docket between two and three o'clock in the afternoon. It was held that the affidavits did not show accident or surprise.

The same court refused a new trial where it appeared that the moving party, who was his own attorney, lived twelve miles from the county-seat; that he had a large amount of stock and had no male help on his place, and was consequently obliged to be home every night; that in order to be present at the trial he rose at four o'clock in the morning, and after attending to his home duties started with his team between five and six o'clock; that he made no stops on the way, and drove with all possible speed, reaching the court-house at ten o'clock A. M., but after his case had been tried; that the delay was caused by the bad and almost impassable condition of the roads. It was held that no accident or surprise was shown, because the affidavit did not show that the roads were any worse than they

14 Vollard v. Wilcox, 17 Neb. 46; s. c., 22 N. W. Rep. 71.

15 23 Kan. 130.

usually were at that time of the year (December), or that by an unexpected change they had become suddenly worse, or that he was not fully aware of their exact condition. 16 It is probably true that the affidavit did not show accident, but that it did not show surprise is not so clear. True, it may be argued with some degree of plausibility that he miscalculated the length of time it would take him to drive twelve miles, knowing the condition of the roads and the condition of his team. But after all, the question turns upon whether or not he used due diligence, or was himself without fault. He rose at four A. M., which would seem to be early enough to satisfy the most fastidious. He was ready to start on a twelve miles journey between five and six A. M. It does not appear at what time court was to open, but it is fair to presume at nine A. M. That would give him between three and four hours within which to drive twelve miles, which would seem to be a reasonable calculation, and one which any reasonably prudent man would make. Then, too, he was in court at a seasonable hour. It is seldom that a court enters upon the trial of a case before ten o'clock, the time prior thereto being taken up with the ordinary morning business. On the whole, it does not seem that he was at fault, and, if not, his case would come within the above definition of surprise the situation in which a party is placed without any default of his own which will be injurious to his interests." At any rate, where the question is so close, the boasted liberality of a code, the express object of which is to do away with and abolish technicality and do substantial justice between the parties, ought to come to his relief. Nearly all codes provide that the "rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions and all proceedings under it shall be liberally construed, with a view to promote its object and assist the parties in obtaining justice." It is certainly true that the moving party in Mehnert v. Thierne did not obtain justice, the glittering provisions of the code to the contrary notwithstanding.

The Supreme Court of Iowa 17 granted a

16 Mehnert v. Thierne, 15 Kan. 368.

17 First National Bank v. Harwick, 74 Iowa, 227; s. c., 37 N. W. Rep. 171.

new trial upon a very similar state of facts under a code containing the same provision, to-wit: granting a new trial for "accident or surprise which ordinary prudence could not have guarded against." That was a case where judgment was rendered against a party in the absence of his attorney, and it appeared that the attorney, being engaged in an important criminal case in another county, employed another attorney to attend to the cause for him, giving him all the necessary instructions; that the attorney employed proceeded by the all-rail route to the countyseat and did not reach the place until a few hours after judgment was entered; that by taking another route, partly by rail and partly by stage, he could have reached the countyseat in time for trial. The court said: "Mr. Hawley's [attorney for the moving party] professional engagements were such that he was not able to leave Fort Dodge on the first day of the term. On the next day he went to the county-seat of Sac county [the place of trial], going by the most direct route by rail, but reached there after judgment was rendered. By going another route, however, he could have reached there in time to have been there before the case was taken up, but by that route he would have been compelled to travel some fifteen miles by stage. * The court, we think, was warranted in finding that the failure of the attorney for the garnishee [moving party] to be in attendance when the case was taken up was accidental, and that ordinary prudence was exercised to guard against it. When an attorney is unable, from any cause, to give attention to the business of his client which has been intrusted to him, he may lawfully place it in the hands of other competent counsel. And when he has done that, and placed the counsel so selected in possession of all the facts known to him, or essential to the proper discharge of the duty devolving on him, and received his undertaking to attend at the proper time for the transaction of the business, he has done what ordinary prudence demands. The court may also have found from the evidence that Mr. Hawley exercised ordinary prudence to be in attendance at the proper time. True, it was a physical possibility for him to have reached here a t an earlier hour. But the question does not necessarily depend upon whether he

did all that was physically possible. And there are matters not shown by the evidence of which the court might take notice in determining the question; such as the state of the weather and the apparent condition of the docket. If the weather was inclement, and the condition of the docket did not indicate a necessity for his presence at an earlier hour than that at which he arrived, he certainly was not negligent in selecting the all rail route of travel rather than the other." It appeared from another part of the opinion that the subpoenas in the case were returnable on the second day of the term; so his presence was not needed on the first day. This opinion has been quite fully quoted to show the difference between this court and the Kansas court. According to the view of the Kansas court it would have been necessary for the moving party to show that there was something unusual about the trip, or that by an unexpected change or event the time or connection of trains became suddenly changed, or that he was not fully aware of the exact condition of affairs. But nothing of the kind appears in the record. The two courts differ, too, as to the effect of the weather on such a question. The Kansas court does not seem to regard bad weather as a valid excuse for the absence of a party or his attorney, unless there has been a sudden, unexpected and unusual change, such as to affect the facilities for travel; while the Iowa court seems to hold that inclemency of the weather ought to be taken into consideration as bearing on the question of what a reasonably prudent man would do. The position of the Iowa court is undoubtedly the more reasonable of the two, both of which are based on the same statutory phraseology.

Where, however, a party was absent because of delay of railroad trains, and their failure to make connection a new trial was granted, the moving party having set out in his affidavit what he would swear to. 18

But to return to the Kansas court, it was held error not to grant a new trial when a defendant was ready for trial on the day on which his case was originally set for trial on the docket, and the day of trial had been changed to a date one day earlier, and he had no notice or knowledge of the change until the morning of the changed day, and his 18 Smith v. Rolling's Adm'r, 3 S. E. Rep. (Va.) 238.

counsel asked the court to allow them until noon to get their client into court, and opposing counsel consented, but the court refused and tried the case. The defendant was in court with his witnesses when the court convened in the afternoon.19

A new trial was granted where it appeared that the defendant's counsel was unintentionally absent during trial, and he had made arrangements with the clerk of court to notify him when the case was called; that he appeared without much delay after he was SO notified.20

So, too, a new trial was granted where counsel for the defendant was compelled to be absent from the city on the day of trial, and gave his answer to another attorney, who was employed in the case, to file, and the latter was sick during the week when the case was tried.21

A new trial was granted where the defendant was absent because he was misled by the case having been entered on the jury docket when it should not have been, the jury fee not having been paid.22

Where the affidavit of defendant's attorney stated that the case was called and a default entered in the lower court through his oversight, and that the matter was not called to his attention until after the time for appeal had passed, and that in his opinion the defendant had a good defense, a new trial was granted on terms that the defendant recover no costs.2

The same court granted a new trial where the attorney for the moving party was misled by the fact that he had brought suit for another client against the same defendant, which case had been disposed of and should have been off the docket, and in looking to see if the new case was on the docket, mistook the old one for it. 24

A new trial was granted where it appeared that the plaintiff was prevented from reaching the court before trial by reason of high water; that he had been in the habit of attending court regularly, and therefore had no

19 Leighton v. Dixon, 42 Kan. 618; s. c., 22 Pac. Rep. 732.

20 Hinman v. Hamilton Paper Co., 53 Wis. 169; s. C., 10 N. W. Rep. 160.

21 Remke v. Morse, 10 S. W. Rep. 468.

22 Loomis v. Sheeler, 13 S. W. Rep. 614.

23 Donnelly v. McAdams, 13 Atl. Rep. (R. I.) 108.

24 Burrough v. Hill, 15 R. I. 190; s. c., 2 Atl. Rep.

82.

attorney that knew anything of the facts of his case; that his demand was just, and that injustice had been done him.25

So, too, a new trial was granted where a motion for a continuance had been made on account of the absence of a material witness; but one of the defendants was sick when the motion was taken up, and the other was unable to attend court, and each was ignorant of the other's condition, and therefore failed to furnish the requisite proof to sustain the motion.26

But a new trial was denied where the defendant employed an attorney who filed a plea in bar and left the court, 'believing from the state of the docket and the remarks of the judge that his case would not be reached.27

So, too, a new trial was refused where a cause came on for trial and was heard in its regular order under the rules of court, at a time when counsel for the defendant, owing to a different rule in an adjoining county, did not expect it to, and in consequence he and his client were not present. 28

It was held in Halton v. Salmeus,29 that parties who rely upon their attorney to notify them when their presence would be needed, were not entitled to a new trial because of his failure to notify them, though their absence may have operated to their prejudice. This doctrine does not seem to be well founded. It is undoubtedly true that clients all do trust to their attorneys to inform them when their presence is needed. In fact, they have no other means of knowing, and that is one of the duties an attorney is hired to perform. Under such a rule, what would hinder the unscrupulous practitioner (unfortunately there are such; perhaps the system of admitting candidates to practice is responsible for it) from taking a fee from the adverse party and then willfully refusing to inform his client when to appear? The Supreme Court of Georgia 30 have held that a new trial would have been granted for failure of an attorney to notify his client when to appear, if the affidavit had contained facts showing a meritorious defense. True, that was dictum, but it was good sense nevertheless.

25 Vannerson v. Pendleton, 8 S. & M. 452.

26 Sherrad v. Olden, 1 Halst. 419.

27 White v. Ryan, 31 Ala. 400.

28 Holloway v. Holloway, 11 S. W. Rep. (Mo.) 233.

29 2 S. W. Rep. 753.

30 Ferril v. Marks, infra.

But a more unique and wonderful doctrine was laid down in Mayer v. Duke," in which it was held that a new trial should not be granted on account of the defendant's absence, even though the importance of his testimony and the fact that his absence was due to a mistake as to the date of trial sufficiently appear, as the defendant, in omitting to give his testimony by deposition, assumed the risk of losing the benefit of it. The court said: "It may be conceded that the affidavit of Kune [the moving party] attached to the motion for a new trial sufficiently showed the materiality and importance of his testimony, and that his failure to attend was the result of a mistake as to the day which was set down for the trial of the case. The fact, however, remains that the diligence was not used which the law requires. A party to a suit whose testimony is material to his cause may prefer to give his testimony in person, and may therefore decline to have his deposition taken in his own behalf. But if he do so, he takes the risk of losing the benefit of his testimony in the event he should fail from any cause to attend upon trial." The writer is charitable enough to assume that the doctrine thus laid down is good law in Texas, its authenticity being derived from local legislalation or some peculiar rule of practice of Aztec origin. But he looks upon its general applicability very much as he does upon the Baconian authorship of Shakespeare's plays -he does not consider it debatable.

2. Meritorious Defense.-Where the plaintiff's attorney wrote the defendant's attorney, who lived in a different county, that he might fix the time for trial at any time within the first two weeks, if agreeable to the court, and defendant's attorney set the time for trial, but the judge changed the time to a date five days in advance of the time as fixed by defendant's attorney, who knew nothing of the change, and the defendant was not informed of the change till two days before trial, when he was sick and unable to be present. It was held that, though the absence of the defendant and his attorney was satisfactorily accounted for, a new trial could not be granted, because no facts were set out showing a meritorious defense.32

So, too, a new trial was denied where it

31 10 S. W. Rep. (Tex.) 565.

32 Holliday v. Holliday, 10 S. W. Rep. 690.

appeared that the defendant's absence was satisfactorily accounted for, his affidavit stating that he was not notified by the attorney he expected would represent him, and was thus prevented from making his defense. New trial refused because the affidavit did not show that he had a meritorious defense, or that if he had been present the result would likely have been different. 33

Where it appeared that the attorney for the defendant lived at Santa Barbara, and was notified on Nov. 9 that his case would be tried at Los Angeles on Nov. 16, and that on Nov. 13 he wrote to an attorney at Los Angeles to appear for him and secure a continuance of the case; that his letter was not received by the attorney in Los Angeles until 7 P. M. Nov. 17, the decree having been rendered on the day previous. The court seemed to think that the affidavits did not show accident or surprise which ordinary prudence could not have guarded against, but held that a new trial could not be granted because there was no showing of a meritorious defense or that the result of a new trial might be different from the first, and further held that if every fact set out in the answer on file were true, the decree could not be set aside.84

35

There does not seem to be perfect unanimity in the adjudications as to what showing of defense is necessary. Thus in Donnelly v. McAdams, supra, it was held that the affidavit of defendant's attorney that in his opinion the defendant had a good defense was sufficient. While in Patterson v. Ely, it was held that "surprise is not of itself ground for a new trial. It must be such as ordinary prudence could not have guarded against, and the party must have been injured by it. In an affidavit the allegation of the affiant that as he is informed and believes the damages were excessive and more than could be recovered on a fair trial of the action,' is not sufficient as a statement of meritorious defense upon which to justify any disturbance of the verdict. The facts should be stated from which the court can perceive whether the damages are excessive, and whether, on another trial, there would be a liability of a verdict for a lesser amount." The better opinion seems to be that the affi

33 Ferril v. Marks, 76 Ga. 21.

34 Cook v. De La Guena, 24 Cal. 241.

35 19 Cal. 28.