Gulf & Ship Island Railroad v. Flowers ( 1904 )

Calhoon, J.,

delivered tbe opinion of tbe court.

There is no question whatever in this ease of the good faith of Flowers or his attorney. Tbe sole question is whether it would not be a fraud to permit the judgment to stand. This record presents a situation where a judgment by default was had which is fraudulent in its effect, but not in its design.

It is conceded here that the railroad attorney took the train for the place of trial before the justice of the peace, but, having information on the train that the attorney for Flowers would not be there and that it would be useless to go, he passed the place of trial, went on to Laurel, and saw the attorney for Flowers, who told him he would not be at the place of trial, and that, he “had written to Mr. F. O. Flowers, his client, and had also written the justice of the peace, that he could not be there at the trial on that day, and to continue the case.” The railroad attorney, when told this, went on home, though having then time to go to the place of trial on that day, and did not hear of any judgment until ten days after its rendition, too late to appeal. Flowers had the letter from his attorney, but did not continue the case, but himself took a judgment by default. The execution of this judgment was enjoined, and the injunction should not have been dissolved. The railroad attorney had the right to rely on the statement of the attorney for Flowers; and, there being no dispute between counsel as to the facts above stated, the injunction is retained, the decree dissolving it reversed, and the cause remanded for further proceedings.

Reversed and remanded. •