Green v. Rutledge

Per Curiam.

— This is an appeal from a judgment dismissing the appellant’s action, and from an order denying the appellant’s motion to vacate such judgment.

The case had been brought on for trial in November, 1921, and during the trial, a new issue having been presented, it became necessary for the appellants, or at least they so thought, to amend their complaint and also to bring in a new party. To permit this to be done, a motion for continuance was made, which was granted and the trial was suspended, the court at the time stating: “I deem it unwise at this time to specify any particular time to which this case is continued. It probably might be brought on sooner if it was simply continued subject to re-noting when you get it at issue under the new pleadings.”

The then attorneys for the appellants were dilatory in filing or serving a new complaint, and on January 9 the case was set for trial for January 17. At this latter date no one appeared and a dismissal was procured, upon which judgment was entered. Thereafter motion was made to vacate the judgment of dismissal, Which was denied.

’ As we view the record, the court abused its discretion in refusing to grant the motion to vacate the judgment, considering the facts and circumstances surrounding the status of this case.

The judgment is reversed, with instructions to the lower court to set aside the judgment and allow the filing of the amended complaint.