Parsons v. Able ( 1857 )

Wheeler, J.

The duty assigned to the auditors, required the examination of witnesses and the hearing of evidence, in order to ascertain the state of .accounts between the partners. Of course the parties must have notice, to enable them to come prepared with their evidence at the hearing. The first report having been made upon an ex parte hearing, and without notice to the defendant or his attorney, was very properly rejected by the Court, and the case referred back to the auditors. If the auditors had then given reasonable notice of the time and place of hearing, and the defendant had failed to attend, they might have proceeded with the hearing ex parte; or they might have adopted their former report. But notice given on the tenth, of a hearing to be had on the twelfth of the same month, cannot be deemed reasonable notice. The defendant could not reasonably be required to come prepared with his evidence upon so short a notice. The Statute does not prescribe what notice shall be given; but surely, it should not be less than is allowed by law to prepare for a trial in any Court. In the District Court, in addition to the notice required by law, the defendant is allowed time for pleading, before he can be required to go to trial; and in the Justice’s Court he is required to have five entire days’ notice. The attorney objected that the notice was not sufficient at the time it was given ; and he excepted to the report at the earliest opportunity. The exception ought to have been sustained. The effect of admitting the report in evidence, under the further ruling of the Court in the charge to the jury, was to enable the plaintiffs to make out a prima fade case, by evidence obtained by means of an ex parte hearing ; and thus to deprive the defendant of a fair trial, upon equal terms, before the jury.

For the error in admitting the report in evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.