Citation Numbers: 42 Kan. 616
Judges: Simpson
Filed Date: 7/15/1889
Status: Precedential
Modified Date: 9/8/2022
Opinion by
Dixon commenced his action in the district court of Ford county, on the 12th day of January, 1886, against Farrington, the maker, and Leighton, the indorser, of a promissory note. Farrington made default, but Leighton filed a verified answer denying that he had indorsed the note. The cause was placed on the trial and bar dockets for trial at the regular November term of the district court
Near the close of the first week of the term, the court reset the civil causes for trial, and assigned this case for trial on Tuesday, the 15th day of November, instead of on Wednesday, the 16th, the date of the original assignment. Leighton’s attorneys promptly advised him of the change of the day of trial, by letter, mailed on Saturday, the 12th, at noon. This letter never reached Leighton, as he was then en route from Meade Center home.
On the morning of Tuesday, the 15th, the cáse was called for trial at the opening of the court. Counsel for Leighton requested the court to allow them until noon to get their client and his witnesses into court, and the counsel of the plaintiff below offered to wait until the noon train; the counsel for Leighton offering to proceed with other matters so as not to delay the court. The trial court refused to wait, ordered a jury impaneled, the case was tried, and a judgment rendered .against Leighton for $448.21 and costs of suit. Leighton’s counsel promptly filed a motion for a new trial in the afternoon, Leighton himself being personally in court, and supported their motion by affidavits of counsel and Leighton, reciting the above facts of diligent action by both counsel and
We take judicial notice of the fact that Cimarron, the place of Leighton’s residence, is in an adjoining county to Ford, and is situated in Gray county, on the line of the Atchison, Topeka & Santa Fé Railroad, and that Gray county before its organization was attached to Ford for judicial purposes. Under the showing made on the motion for a new trial, it appears to us that the request made by Leighton’s counsel, that the hearing of the case on the 15th should be delayed until the arrival of the noon train, was a very reasonable one; especially is this so in view of the fact that the counsel on the other side consented thereto, and offered to wait until that hour.
This case was commenced in January, 1886. The answer was filed in March, 1887. The case stood for trial at the November term, 1887. Three weeks before the term, counsel for Leighton notified him by letter that the case would be reached for trial early in the term, but not specifying on what day. This letter never reached Leighton. When the regular November term convened there were thirty criminal cases on the docket, and the civil causes were not assigned for trial on special days until Wednesday, the 9th, when this cause was set down for the 16th. The letter of counsel notifying Leighton of this was received by his father, and the messenger was sent to him as above stated.
It appears from this that counsel for Leighton had acted promptly and well on all occasions, and that Leighton himself so acted that he would have been ready for trial on Wednesday, the 16th.. As we regard the facts, it seems evident to us that the reason why Leighton was not in attendance on Tuesday, the 15th, was because in his attempt to be ready for trial on the 16th he was so circumstanced that he did not receive notice in time that his case had been reset for the 15th. We are disposed to rule, under all the peculiar circumstances presented by this record, and being necessarily ignorant of the undercurrents that flow around such contentions, that
We recommend that the cause be reversed, and remanded, with instructions to grant a new trial.
By the Court: It is so ordered.