Seymour v. Elmer , 4 E.D. Smith 199 ( 1855 )

Woodruff, J.

The absence of the defendant’s counsel at the time this cause was called for trial, arose from circumstances liable to occur without any fault on his part, and the misapprehension under which he was delayed for fifteen minutes after the hour at which the summons was returnable, considered in connection with the fact that the plaintiff’s counsel and witness were still in court, and the court willing to take up the cause if the plaintiff’s counsel would consent, seem to me sufficiently to excuse the default.

Upon the question whether manifest injustice has been done, the case is not quite so clear. If the facts sworn to by the defendant are true, then injustice is manifestly done by the judgment; and, on the other hand, if the statements of the assignor of the plaintiff are true, the judgment is just. We have heretofore considered that where it appeared by the papers that the plaintiff’s case was established by an indifferent witness, and nothing appeared on the part of the defendant bnt his own unsupported oath, where he could not himself be a witness on the trial, it would be of no avail to order a new trial, since we were not advised that the result of a new trial could be other than the result of the first, nor in such case could it be apparent that injustice was done. In this case the assignor of the plaintiff declares himself to be the representative of the plaintiff in the matter of the suit. It is not certain but the assignor may prove to be himself incompetent, and if not, his testimony in the relation he occupies will be received with caution, and if examined, the defendant himself will be a competent witness'-to the same matter. Though not without some hesitation, I have come to the conclusion that a new trial should be ordered upon terms. The defendant must waive any claim (if any he have) to restitution of the costs paid on appealing, and must pay the respondent’s costs on appeal, and the parties must appear before the justice on the fifteenth day of May next, at 10 o’clock, A. M., and proceed with the trial at that time, or on such days as the justice of the district court may by adjournment appoint.