Mulhern v. Hyde — 3 E.D. Smith 177

Majority

p. 177

Mulhern v. Hyde.

Headnote

The mere allegation of other engagements of the defendant or of his counsel elsewhere, does not constitute a sufficient excuse to justify this court in setting aside a judgment by default rendered in one of the district courts.^[1]

This was an application for a new trial, under § 366 of the Code. The defendant having suffered judgment by default in one of the district courts, produced affidavits, to the effect that he and his counsel had been prevented from appearing on the trial below, by engagements elsewhere. The nature of these engagements did not appear.

The justice returns that the defendant did not appear on the return day or the adjourned day.

The defendant shows no sufficient excuse for his default in not appearing. We can never sanction a practice that a defendant and his counsel may absent themselves from the court on the day of trial, and then offer a mere allegation of other engagements as an excuse for their failure to appear, and as a ground for setting aside the judgment. If such should be established as the law of this court on appeals, very few judgments could hereafter be recovered in justices’ courts in this city which we should not be compelled to reverse on appeal

Judgment affirmed.