C. Vernon Rettew Co., Inc. v. Heller , 1923 Pa. Super. LEXIS 301 ( 1923 )

Per Curiam,

Appellant complains of an order of the court below discharging a rule to show cause why a dismissal of a motion for a new trial should not be rescinded and the motion restored to its condition when made. The petition for the rule set forth that the principal ground upon which the motion for a new trial was based was after-discovered testimony, and that, as a result of the failure and neglect of appellant’s counsel to take the •testimony of her witnesses in support of the motion, it was dismissed and judgment was entered on the verdict. We agree with the learned judge of the court below that he would not have been warranted in making the rule absolute. The only ground of appellant’s complaint was the negligence of her counsel. The able counsel for appellant concedes, as he must, that the negligence of an attorney is chargeable to the client. He urges, however, that the rule does not apply where the attorney for the opposite party “participated” in the negligence. This contention is sufficiently answered by the fact that there is no averment in the petition of any “participation” of appellee’s counsel in the action of appellant’s counsel and no allegation of any conduct savoring of collusion between the attorneys. We are all of opinion that it would have been an abuse of discretion to have reinstated the motion for a new trial.

The decree is affirmed.