New Orleans Brewing Co. v. Oldstein , 11 Teiss. 143 ( 1914 )

His Honor, EMILE GODCHAUX,

rendered the opinion and decree of the Court, as follows:

Tire record shows that defendant was .absent and unrepresented at the time of the trial and judgment below. Upon this appeal from the judgment. against him, he urges that the judgment be set aside and that the case be remanded in order to be afforded the opportunity of establishing the apparently valid defense set out in detail in his answer.

Defendant’s application sets out that on the day and ■a short time before the hour fixed for the trial of the case, namely, ¡11 A. M., the attorney, who had filed answer on his behalf, withdrew from the case; that he succeeded in employing new counsel at about 10.15 A. M., but that owing to the time required to acquaint the latter with the-facts and defenses and to secure the presence of his witnesses, he was unable to reach Court until 11:30 A. M., that upon .arrival there with his counsel and witnesses, willing and prepared to go to- trial, he found that the cause, which was seventh on the docket of the Court, had already been tried and submitted and had proceeded to judgment, and that several cases which had occupied a preferential right of trial on the docket, had been temporarily passed by the Court, and were in fact taken up and tried subsequent to his arrival.

The defendant applied in vain to the trial Court -to reopen the case, reciting the foregoing circumstances, stating in detail the facts intended to be proved, naming as his principal witness an employee of plaintiff, and exhibiting to the Court documentary evidence, emanating from plaintiff and on its face supporting the averments of the answer.

Opinion and decree, February 9th, 1914.

It does not appear that defendant has been guilty of any laches, and upon the whole there is good ground for 'believing, if the facts stated by him be true, that he has a substantial defense which by force of circumstances beyond his control he has been unable to present. The interests of justice would best be subserved by .reversing the judgment and remanding the cause.

It is accordingly ordered that the -judgment be reversed ' and the case remanded for further proceeding in accordance with law and with the views herein expressed, all costs, including those of the present appeal to await the final determination of the case.

Reversed and remanded.