Hopple v. Am. Surety Co.

SULLIVAN, J.

Epitomized Opinion

Original action in the Common Pleas wherein the American Surety Co. of New York was plaintiff and Wm. H. Hopple et al were defendants. When the case was called for trial the defendants did not appear and judgment was rendered for the Surety Co. upon default.

Thereafter within term Hopple filed a motion to vacate judgment and a motion for new trial. In support of these motions several affidavits were offered. They set forth that application was made to the clerk to have the name of one, Christopher appear as counsel of record and that the clerk declared that all that was necessary was to have the name placed upon the Appearance and execution docket. This was done and .no notice of the new counsel was given to the assignment room. When the case was called, Christopher was not informed by the Assignment Room and did not know of the calling of the case and consequently neither he nor his client appeared. The trial court overruled both motions whereupon Hopple prosecuted error to the Court of Appeals which held:

No bill of exceptions is filed and as a result this court cannot consider the affidavits that were filed in support of the motions in the court below. This court takes judicial notice of rules “f” and “g” governing the assignment of cases in the Common Pleas Court. By these rules attorneys are required to keep the assignment room informed of their telephone numbers and cases regularly assigned to a room will there be tried or dismissed unless for good cause arising after the case might be passed.

It is not an abuse of discretion to refuse to vacate a judgment even during the term where the only ground is that counsel were negligent in attending to the trial of the case. 17 CC. N. S. 122. Judgment affirmed.